Civil Bill Courts (Ireland) Act, 1851

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CIVIL BILL COURTS (IRELAND) ACT 1851

CHAPTER LVII.

An Act to consolidate and amend the Laws relating to Civil Bills and the Courts of Quarter Sessions in Ireland [¹] [1st August 1851.]

[Preamble.]

[S. 1 rep. 38 & 39 Vict. c 66 (S.L.R.)]

Appointment of assistant barristers.

2. It shall be lawful for the Lord Lieutenant on the death, resignation, or removal of any assistant barrister to nominate and appoint to the office of assistant barrister for the county of Dublin, and for each and every other county and riding, a practising barrister at law of ten years standing at the least, who shall have actually practised ten years in her Majesty’s superior courts in Dublin, and shall not at the time of his appointment to such office have retired from such practice; and every assistant barrister, including every assistant barrister to be appointed for the said county of Dublin, shall hold his office during good behaviour, and no longer: Provided always, that it shall be lawful for her Majesty to remove any such assistant barrister from his office upon the address of both Houses of Parliament; and every assistant barrister shall be sole judge of the civil bill court to be holden under this Act, and shall be ipso facto in the commission of the peace, and a justice of the peace for the county for which or for any riding of which he shall be so appointed, even though no commission should be issued for the purpose, and shall duly attend at every session of the peace and adjournment thereof holden in such county or riding, and shall continue such attendance during the whole of every session and every adjournment thereof, save and except such sessions or adjournments as shall be held for any other purpose than the administration of justice in criminal cases and the hearing of causes in manner herein mentioned by civil bill, and shall by virtue of his office be and preside as chairman of the justices at general or quarter sessions; and it shall and may be lawful for such assistant barrister to proceed in the criminal or other business at such sessions, although no other justice of the peace for the county, riding, or place shall be in attendance: Provided also, that no person holding the said office of assistant barrister shall be capable of being a member of the House of Commons.

Oath of assistant barristers.

Assistant barristers to take the following oath before Lord Chancellor before they act.

Oath.

3. No assistant barrister already appointed, if removed to any other county or riding, nor any assistant barrister hereafter to be appointed, shall proceed to act as assistant barrister until he shall have first taken the following oath before the Lord High Chancellor or Keeper or any Commissioner of the Great Seal of Ireland for the time being; which oath the said chancellor, keeper, or commissioner is hereby empowered to administer; that is to say,

‘I, A.B., do swear, that I will execute the office of assistant ‘barrister for the county of         [or riding of the county ‘of         ], and for any other county or riding to which ‘I may be hereafter appointed, diligently, justly and impartially, ‘and without favour, affection, or malice, do equal right to all ‘the Queen’s subjects that shall come within my jurisdiction; ‘and that I will in all things, to the best of my skill and power, ‘faithfully execute all the duties imposed or that shall hereafter ‘be imposed on me in virtue of such office.

So help me God.’

Provided always, that any assistant barrister, who shall have once taken the said oath, shall not be obliged to repeat the same on any subsequent removal to any county or riding.

Salaries, &c.

Salaries of assistant barristers.

4. The several assistant barristers shall (over and above the annual sums payable to them in respect of the registration or revision of the lists of parliamentary voters) severally and respectively receive the annual salaries mentioned and specified, relating to them respectively, in the schedule (B.) to this Act annexed, in lieu of their former salaries and fees, the said several salaries to be paid out of the Consolidated Fund of the United Kingdom of Great Britain and Ireland by four quarterly payments . . .

[S. 5 rep. 38 & 39 Vict. C. 66. (S.L.R.)]

Lord Lieutenant may remove assistant barristers to other counties with their assent.

6. It shall be lawful for the Lord Lieutenant, by and with the consent of the Privy Council in Ireland, to remove any assistant barrister from any county or riding to any other county or riding, to act therein as assistant barrister: Provided always, that no such removal shall take place without the assent of such assistant barrister.

Appointment during temporary absence of assistant barrister.

7. When it shall appear to the Lord High Chancellor, Keeper, or Commissioners of the Great Seal of Ireland, for the time being, that any assistant barrister is unable to attend at the time appointed for any session of the peace in any county or riding, or at any adjournment thereof, or to continue his attendance thereat as aforesaid, it shall and may be lawful for the Lord Chancellor, Keeper, or any Commissioner of the Great Seal for the time being, to nominate or appoint some other barrister of ten years standing at the least, and who shall not have retired from practice, to do and execute the duty of such assistant barrister for such time as such illness or absence shall continue; and every person appointed under this Act to do and execute the duty of assistant barrister during the absence or non-attendance of such assistant shall, before he shall enter on the duties of the said office, take the oath herein-before required to be taken by such assistant barrister respectively, mutatis mutandis, either before such chancellor, keeper, or commissioner, or publicly in open court at the sessions of the peace or adjournment thereof on the first day on which he shall attend at any session or adjournment thereof (and which oath the clerk of the peace or his deputy is hereby authorized and required in such case to administer) to execute such duty, and shall have all and every the powers and authorities given to such assistant barrister by this and any other Act or Acts of Parliament, and be authorized in every respect to do and execute, during the continuance of such absence, and no longer, every matter and thing which such assistant barrister might himself lawfully do if personally present.

Adjournment of sessions on non-attendance of assistant barrister.

8. [Recital.] In case it shall so happen that any assistant barrister shall not be in attendance to open such sessions on the day appointed for opening the same, or after having opened the same shall not continue his attendance until the business of such sessions shall be completed, it shall and may be lawful for any one justice of the peace for the county, or for the clerk of the peace or his deputy, in the absence of any justice, at the hour of five o’clock in the afternoon, and not before that hour, to open and adjourn, or to adjourn only, as the case may be, such sessions, and so from time to time and for such reasonable time as shall be sufficient for such Chancellor, Keeper, or Commissioner, to be informed of such illness or absence and to appoint some person to do the said duty, and for such person to repair to the place where such sessions should be held and take upon himself the execution of such duty.

Payment of deputies.

9. Every person appointed under this Act during the illness or absence of any assistant barrister to do and execute the duty of such assistant barrister for him shall receive and be paid such compensation for his labour and trouble therein as the Lord Chancellor, Keeper, or Commissioners of the Great Seal of Ireland, for the time being, shall think fit to direct and appoint, the same to be paid out of the salary hereby provided for such assistant barrister who shall so be absent.

Clerks of the peace to act as clerks to assistant barristers and as registrars, &c., but not as attorneys.

10. The clerks of the peace for the several counties respectively, or their sufficient deputies, shall be and are hereby required to act as clerks to the said assistant barristers respectively in the execution of the duty imposed on them by this Act, and as registrars respectively of the said court, and shall be obedient to the said assistant barristers respectively in all lawful commands which they shall respectively receive from the said respective assistant barristers relative to the business of the said court, and the duty imposed by this Act on the said assistant barristers and clerks of the peace respectively; and the said several clerks of the peace and their respective deputies shall and they are hereby required to keep books for the entering and registering of all civil bill causes, and shall enter and register the same; and such books shall be records of the respective counties to which they shall belong; and no clerk of the peace, or any deputy or clerk of his, or any person for his use or benefit, shall act as an attorney in any cause which such assistant barristers are by this Act empowered to hear and determine; and if he, they, or any of them shall so act as an attorney in any such cause, by himself or any other for his use or benefit, he shall forfeit the sum of fifty pounds to any person who shall, within one year after such offence committed, sue for the same by action or information in any of her Majesty’s courts of record in Dublin, and shall, moreover, in case of judgment being had against him, be incapable of ever holding such office of clerk of the peace, or deputy clerk of the peace, as the case may be.

Clerks of the peace, &c. to make affidavit.

11. Every clerk of the peace, and deputy clerk of the peace, at the first sessions at which they shall respectively attend after their respective appointments, and at the commencement of such sessions, shall and they are hereby respectively required to make and sign an affidavit in writing, to be attested by the assistant barrister of such respective county, and to be deposited in the office of the clerk of the peace amongst the records of the court of such county, in the form following; (that is to say,)

‘I, A.B., clerk of the peace [or deputy], do swear that I have ‘not already, directly or indirectly, taken, and will not, directly (or indirectly, take, so long as I shall continue to hold the office ‘of clerk of the peace [or deputy], any greater or other fee, or ‘sum or sums of money, or other thing, for or on account of any ‘matter or thing done or to be done in any cause to be heard ‘and determined before the assistant barrister of this county ‘[or riding of the county of         ] by civil bill, than is or ‘shall be allowed by law.’

[S. 12 rep. 40 & 41 Vict. c. 56. s. 6.]

No one to act as attorney unless admitted.

13. No person shall be admitted to practise as an attorney before any assistant barrister, or the recorder of Dublin, in any civil bill court, or at the court of general quarter sessions, but such person only who is or shall be admitted an attorney in one of her Majesty’s superior courts in Dublin; and no attorney shall be suffered to practise as aforesaid in any county wherein he is or shall be a justice of the peace.

Suspension of attorneys for misconduct.

14. It shall and may be lawful for the recorder of Dublin, or any assistant barrister, if any attorney practising in causes by civil bill shall appear to him, either upon such recorder, or assistant barrister’s own view in open court, or by examination of others upon oath, to have acted in any such cause corruptly, or knowingly and wilfully against his duty as an attorney, to make an order, to remain of record with the clerk of the peace, suspending such attorney from practising on civil bills, for a given time, in such county or riding, which order shall be binding: Provided nevertheless, that it shall be lawful for any attorney against whom such order shall be made to appeal, if such order shall have been made in the county or county of the city of Dublin, to any of the judges at nisi prius in Dublin, and if in any other county to the judge of assize at the sittings or assizes to be holden within twelve months after such order made; which judge may, by examination on oath, examine into the ground of such order, and reverse, vary, or affirm the same as he shall see reason.

Appointment of officers to serve civil bill processes.

15. The several persons now holding the office of process officer or process server in the several counties and ridings shall continue to hold the same as heretofore, until removed by the assistant barrister of their respective counties or ridings; and at such times as occasion may require, each and every of the assistant barristers shall and may, by warrant under his hand and seal, from time to time appoint such number of fit and proper persons, being householders residing in the principal market towns or in other convenient places within the said counties or ridings, as to the said assistant barrister shall from time to time appear to be necessary, to be officers for the service of civil bill processes within such county or riding, or within such division of such county or riding as shall be specified in any such warrant; and it shall be lawful for each and every such officer heretofore or hereafter so appointed, and he and they is and are hereby authorized and required, to serve such process accordingly within such county or riding or within such division of such county or riding as aforesaid; and it shall not be lawful for any person whomsoever, other than one of such officers so heretofore appointed or hereafter to be appointed, to serve any such process; and any service or pretended service of any process by any other person whomsoever (save as herein-after provided) shall be wholly null and void to all intents and purposes whatsoever; and any such officer already appointed or who shall be hereafter appointed for the service of process shall be removable and shall and may be removed at the will and pleasure of the assistant barrister of the county or riding for the time being: Provided always, that nothing herein contained shall prevent the service of any process in any proceeding by ejectment or replevin by any person other than such process officer.

Names and places of abode of officers to be published.

16. The name and place of abode of each and every officer already appointed or who shall hereafter be appointed by any assistant barrister to serve such process as aforesaid, and also the name and place of abode of every person removed as aforesaid from the said office of process officer, shall be published in some one or more public newspaper or newspapers circulated in the county or riding, and shall be otherwise promulgated and made known in such manner and at such times as to such assistant barrister shall seem expedient.

Salaries of process officers.

17. Every officer who shall hereafter be appointed by any assistant barrister for the serving of process shall be entitled to and shall receive a salary of ten pounds a year, to be paid quarterly, upon a certificate, signed by the assistant barrister of the county or riding, specifying the amount so to be paid, and stating that such officer has duly performed the duty of his office to the satisfaction of the assistant barrister during the preceding quarter, or during such period thereof as such person shall have so served; . . .

Process officers may receive certain fees, in addition to salaries.

18. [¹] It shall be lawful for any officer hereafter appointed by any assistant barrister for the serving of process, in addition to the salary made payable under this Act, to receive a fee of sixpence for the service of every process which he shall be required to serve in cases where there is only one defendant or there are several defendants residing in the same dwelling house, and one shilling in case of two or more defendants not residing in-one and the same dwelling house; and which said sums of sixpence or one shilling, as the case may be, shall be paid to such officer on the delivery of such process to hi, or the purpose of being served by him; and if any person whosoever, other than one of such officers so appointed as aforesaid, shall serve or pretend to serve any such process (save in ejectment or replevin cases), and shall receive or take any fee or reward for such service, he shall be guilty of a misdemeanor, and shall be liable to be prosecuted accordingly: Provided always, that if a process server of any county or riding shall be required (as herein-after provided) to serve process upon any defendant residing out of the county or riding for which he shall be acting as such process officer, he shall be entitled to receive a fee of two shillings and sixpence for such service together with his reasonable travelling expences incurred in effecting such service.

Books to be kept by officers for entering particulars of service of process.

Books to be evidence in case of death, &c. of officer.

19. A book or books shall be kept by every officer appointed for the service of process, in such form as shall be directed or approved by the assistant barrister, in which shall be entered the names of the plaintiff and defendant by or against whom any process shall be issued, the cause of action, the day on which such process shall be received to be served, the day on which such process shall be served or executed, the place where and the name or description of the person on or with whom such process shall be served or left; and in case any such process shall not have been duly served or left, then the cause of such service not having been effected shall be stated; and each and every process officer shall attend, and produce such book or boooks to the assistant barrister, at each and every sessions of the peace, or shall cause such book or books to be produced to such barrister in case of the unavoidable absence of such process officer; and in case of death, illness, or such absence as aforesaid of any such process officer, the book or books of such process officer, kept by him as aforesaid, verified on oath as to his handwriting by some credible person, shall be produced at the sessions, and shall there be primâ facie evidence of the truth of the several matters entered therein as aforesaid.

Interpreters.

Salaries and appointment of interpreters.

20. Whenever it shall be certified by the assistant barrister of any county to the grand jury of such county that an interpreter is necessary at the quarter sessions for such county, it shall be lawful for the grand jury, and they are hereby required, to present, without any previous application at sessions, to be levied off such county, any sum not exceeding fifteen pounds, at each assizes, as a salary or payment for such interpreter; and it shall be lawful for any such assistant barrister to appoint either one interpreter for the whole of such county or riding of a county, or separate interpreters for each district in which sessions shall be holden, at his discretion, and to direct the salary to be presented as aforesaid to be paid among such interpreters, if more than one shall be appointed, in such manner as he shall think fit; and upon a certificate, signed by such assistant barrister, specifying the amount of such payment, being produced to the treasurer of such county, it shall be lawful for such treasurer, and he is hereby required, to pay to such interpreter or interpreters, after every assizes, the amount of the payment mentioned in such certificate, not exceeding in the whole the sum presented by the grand jury for such purpose; and each and every such interpreter may be removed at the will and pleasure of the assistant barrister for the time being, and any other person or persons appointed in his place by such assistant barrister.

Times of holding quarter sessions.

21. In each year the general or quarter sessions of the peace in and for every county (save and except the county of the city of Dublin and the county of Cork) shall be held at the following times; that is to say, the Easter sessions on any of the fourteen days next after the twenty-fifth day of March; the summer sessions on any day between the fourth day and the twelfth day next after the last day of Trinity term, both days inclusive; the October sessions on any of the fourteen days next after the eighth day of October: and the Hilary sessions on any of the fourteen days next after the twenty-sixth day of December; and it shall and may be lawful for the assistant barrister in each country (except the county of Cork), at the general or quarter sessions to be held in such respective county next before each Michaelmas term, to fix and appoint the times for holding the next four general or quarter sessions, of which time due notice shall be posted by the clerk of the peace on or before the fifteenth day of November in each year, and also six weeks before the day of holding each such session.

Recorders of Dublin and Cork to hold civil bill courts as heretofore.

22. The recorder of Dublin and the recorder of Cork shall continue to hold courts for the hearing of civil bills in the manner and at the times that they have respectively heretofore held the same; and nothing herein contained shall extend to affect the power of such recorders respectively to appoint the time or times for the holding of such courts respectively; . . .

Cork County, &c.

4. Geo. 4. c. 93.

Division of county of Cork.

23. And whereas an Act was passed in the fourth year of his late Majesty King George the Fourth, intituled “An Act to divide the county of Cork for the purpose of holding additional general sessions therein,” whereby, after reciting that the county of Cork is very extensive and populous, and that it is requisite, for the due administration of justice within the said county, and the preservation of the peace therein, that general sessions of the peace should be holden frequently therein, it was enacted, that from and after the first day of September one thousand eight hundred and twenty-three, for the purpose of holding the general sessions of the peace in the said county of Cork, and for and in respect of all matters relating to such general sessions, but not for any other purpose or in any other respect, the said county of Cork should be and the same was thereby declared to be divided into two ridings, to be called the East Riding and the West Riding of the county of Cork; and that the East Riding of the said county of Cork should comprise and contain the baronies and the liberties following, that is to say, the barony of Duhallow, the barony or united baronies of Orrery and Kilmore, the barony or united baronies of Condons and Clongibbons, the barony of Fermoy, the barony of Kinnatalloon, the barony of Imokilly, the barony of Kerry-Currihy, the barony of Kinnalea, the barony of Barrymore, the barony of Barretts, the barony of East Muskerry (except only the parishes of Aheena and Ahabullog within the said barony), the liberties of the City of Cork, the liberties of Youghal, and the liberties of Kinsale; and the West Riding of the said county of Cork should comprise and contain the baronies and parts and divisions of the baronies following, that is to say, the barony of Beer or Bear, the barony of Bantry, the barony of West Muskerry, the parishes of Aheena and Ahabullog in the barony of East Muskerry, the barony of Kinalmeaky, the barony of Courcies, the barony or united baronies of Ibanne and Barryroe, otherwise called Barryroe and Ibanne, and the baronies of East Carberry and West Carberry, consisting of the eastern and western divisions of East Carberry and the eastern and western divisions of West Carberry; and from and after the said first day of September the said county was thereby declared to be divided accordingly for the purposes aforesaid, and no other; provided that such division of the said county of Cork for the purposes aforesaid should not be extended nor construed to extend to change or alter, or to limit or abridge, or abolish, any power, authority, jurisdiction, right, duty, or privilege of any high sheriff, sub-sheriff, or under sheriff, justice of the peace, or other magistrate, clerk of the Crown, clerk of the peace, or other officer whatsoever, of or in the said county, who should, at the passing of the said Act, or at any time after the passing of the said Act, hold, exercise, or enjoy any such office, or any other civil office whatever, within the said county of Cork, but that all the powers, authorities, jurisdictions, rights, duties, and privileges of such officers should continue in force and be exercised and carried into effect throughout the said county of Cork in like manner, to all intents and purposes whatsoever, as if the said Act had not been had or made, except only so far as it was expressly provided and directed by the said Act: Now be it enacted, that the said county of Cork shall continue to be, until altered as herein-after provided, for the purposes aforesaid, and none other, divided in such manner and form, and under such regulations, conditions, and provisions, as hereby above recited and herein set forth as aforesaid: Provided always, that it shall and may be lawful for the Lord Lieutenant at any time, and so from time to time, by and with the advice and consent of the Privy Council, to alter the boundaries or divisions of the said two ridings now existing or hereafter to exist, and to direct that such ridings shall comprise and contain such baronies, or parts or divisions of baronies, as to him, with such advice, shall seem fit, and to direct that such new boundaries or divisions shall become and be the boundaries of the said two ridings; and from thenceforth the boundaries herein-before provided of the said two ridings shall cease, and the said two ridings shall thenceforth contain and comprise the several baronies and parts and divisions of baronies so ordered and directed as aforesaid, subject to the several regulations, conditions, and provisions herein-before set forth.

Number of general sessions to be held in each riding.

24. . . . It shall and may be lawful for the Lord Lieutenant, at any time, by and with the advice and consent of the Privy Council, to order and direct that four general sessions of the peace, and no more, shall thenceforth be holden in each of the said ridings of the said county of Cork in each year, for the discharge of all such criminal and other business as may be determinable at general or quarter sessions of the peace, or in a civil bill court, in place and stead of the said five general sessions of the peace so herein-before appointed, and to order and direct that the same shall be holden at such times and places and in such manner, in each of the said ridings, as to the said Lord Lieutenant, with such advice as aforesaid, shall seem fit, and also to direct and appoint the manner of making known the periods at which the same shall be holden; . . . and all the criminal and other business of the general sessions of the peace and of the civil bill courts in and for the said several ridings of the said county shall thenceforth be heard and determined at the said four general sessions of the peace so to be appointed as aforesaid.

Lord Lieutenant may divide any county into two ridings.

25. [Recital.] It shall and may be lawful for the Lord Lieutenant, by and with the advice and consent of the Privy Council, on an application made by the magistrates of the county, at a meeting of such magistrates duly convened by the lieutenant of such county, to order and direct that any county in Ireland shall be divided into two ridings or districts, for the purpose of holding sessions therein, and to direct and appoint what baronies or half baronies or other portions of land shall be contained in each of such ridings, and to order and direct that general quarter sessions shall be holden in and for such ridings respectively, and at such time and times and in such towns or places as shall be deemed most expedient for that purpose.

Lord Lieutenant may appoint assistant barristers for each of such ridings.

Salaries of such assistant barristers.

26. It shall and may be lawful for the Lord Lieutenant from time to time to nominate and appoint a practising barister at law, of ten years standing at the least, and who shall have actually practised ten years, and shall not at the time of his appointment have retired from practice in her Majesty’s courts of law in Dublin, to act as an assistant to the justices at the several sessions of the peace and adjournments thereof to be holden under this Act for each of the ridings of the counties so divided as aforesaid; and the said respective assistant barristers shall have all such powers, jurisdiction, and authority in and for such respective ridings for which they shall be respectively appointed as any assistant barrister can or may have in and for any county in Ireland; and it shall and may be lawful for the said Lord Lieutenant to order and declare that each of such assistant barristers so appointed for such ridings as aforesaid shall receive and be paid such one of the several yearly salaries as are herein provided for assistant barristers mentioned in the class 2. or class 3. in the schedule (B.) to this Act annexed as to the said Lord Lieutenant shall seem meet.

The two ridings of the county of Cork and other divided counties to be deemed distinct counties, &c.

27. For the purpose of holding the said general sessions of the peace, and of all matters connected with or relating to such general sessions, the said two ridings of the county of Cork, and the two ridings of any other county which shall be hereafter divided under this Act, shall be distinct and separate counties, and shall be deemed and considered and shall be distinguished as such (as regards the county of Cork) by the names and descriptions of Cork county, East Riding, and Cork county, West Riding, and so in every other county which shall be hereafter divided by the names of the respective ridings in all warrants, processes, and proceedings relative to any matters determinable at any such general sessions respectively; and all such matters and causes shall be heard, tried, and determined, and all such proceedings shall be had and done, at such general sessions for each of such ridings respectively, for and in respect of matters arising within the said ridings respectively, as might have been heard, tried, determined, had, or done at any general or quarter session of the peace for the county of Cork, or such other counties as shall be hereafter divided, under any Act, or Acts, or law or laws in force immediately before the passing of this Act, for and in respect of matters arising within the said respective county at large; and no process, plea, or proceeding, nor any cause, matter, or thing whatever, shall be removed or removable, or transferred or transferable, from any general session to be holden in any one of such ridings to any general session holden in any other of such ridings; and no decree or other order or proceeding at any general session to be holden in any of such ridings shall be of any validity, force, or effect, nor shall or may be executed or be enforced or put in execution, in any other of such ridings, otherwise than if the said respective ridings were two distinct and separate counties; and any and every person who shall be charged in any of such respective ridings with any offence cognizable at the general sessions, shall be held to bail, and shall be arraigned and tried, in that riding only in which the offence shall be charged or alleged or supposed to have been committed; and all justices of the peace and magistrates shall and they are hereby authorized and required to return any informations for offences taken before them, and returnable to the general sessions, to such sessions to be holden within the riding in which such offence shall be charged or alleged or supposed to have been committed.

The two assistant barristers to settle the times of holding the several alternate sessions, &c.

28. The several days to be from time to time appointed for commencing and holding the several alternate general sessions of the peace in the East and West Ridings of the said county of Cork, pursuant to the directions of this Act, shall be from time to time ascertained and settled by the two assistant barristers for the said ridings, in concert with each other, but so as to provide as far as possible that the said sessions shall not be holden at the same times as the assizes for the county; and so in every other county that shall be hereafter divided under this Act; and due notice of the times for holding such sessions shall be posted by the clerk of the peace on or before the last day of the preceding sessions for each of the said respective ridings.

Salaries of criers in the two ridings.

29. It shall and may be lawful for the grand jury of the county of Cork, and for the respective grand juries of the several counties which shall be hereafter divided under this Act, and such grand juries are hereby respectively required, to present, to be raised (as regards the county of Cork) off the respective portions of the said county of Cork constituting the East Riding and West Riding of the said county, and so in any other county which shall be so divided, two several sums not exceeding twenty-five pounds yearly, as regards the county of Cork, and not exceeding twenty pounds yearly, as regards any other county, to be paid by half-yearly payments, as and for the salary of each of the criers at sessions in such two ridings.

Divisions and sessionaltowns.

Existing dirigions and sessional towns to be continue until altered.

30. The several districts or divisions of the several counties and ridings, and the several towns and places within such districts or divisions respectively, appointed under and by virtue of the provisions of the several Acts heretofore in force and relating to the jurisdiction of the civil bill courts, for the purpose of holding sessions therein, and wherein such sessions respectively have been heretofore held, shall be and shall continue to be the districts or divisions, and the towns and places respectively within such districts or divisions, for holding of sessions for hearing and determining causes by civil bill, and for transacting all such criminal and all such other business as may be determinable at any general or quarter sessions of the peace, until the same or any of them are or shall be altered in the manner herein-after provided,

Power to alter divisions, &c.

Lord Lieutenant may-alter existing divisions, and appoint other places for holding sessions.

31. It shall and may be lawful for the Lord Lieutenant, from time to time, by and with the consent and advice of the Privy Council, to alter the divisions and districts for the holding of sessions in any county or riding now existing or hereafter to exist, and to divide the several counties or any of them, or any riding or division of a county, including all counties of cities and counties of towns, boroughs, towns, and places, into as many divisions or districts as shall be thought proper or expedient for the purpose of more conveniently hearing and determining causes by civil bill, and of transacting all such criminal or all such other business as may be cognisable or determinable at any general or quarter sessions of the peace, and to appoint one or more convenient town or place, towns or places, in any such division or district, in which a civil bill court, and a court for transacting such criminal and other business as aforesaid, or a civil bill court only for hearing and determining causes by civil bill, shall be held, and from time to time to alter any such division or district, or any town and place, towns or places, within such division or district, or to discontinue any such town or place, as to the said Lord Lieutenant, with the advice aforesaid, shall seem fit; and every such division or district shall be distinguished by the name of such town or place; and every such sessions, and adjournment thereof, shall be good and effectual for the administration of criminal business and civil bill cases, and doing all other business that may by law be done at the general quarter sessions of the peace, or for hearing and determining causes by civil bid only, as the case may be; and in case of any town or place being so discontinued as aforesaid the same shall thereupon cease to be a town or place for the holding of sessions therein for any purpose whatsoever.

Times for holding sessions and civil bill courts.

32. It shall and may be lawful for the Lord Lieutenant, by and with the advice of the Privy Council, to direct that a general session of the peace and civil bill court, or a civil bill court only, shall be held any number of times not exceeding four times in every year in all or any of the towns or places now appointed or which, may hereafter be appointed for holding sessions; and the Lord Lieutenant shall nominate and appoint the baronies or half baronies or parishes for which respectively such sessions shall be held.

Jurisdiction in counties of cities and towns.

Assistant barrister for East Riding to try causes in the city of Cork.

33. The assistant barrister appointed for the East Riding of the county of Cork shall hear and determine causes by civil bill in and for the county of the city of Cork, in cases where the defendant or one of the defendants in the cause shall reside within the county of the said city, at the several sessions of the peace, or adjournments thereof, for the county of Cork, to be held at Cork; and such assistant barrister shall at the same time hold such court as aforesaid for the hearing of such causes by civil bill for one division of the county of Cork; and the city of Cork shall be deemed and taken, for the purposes of this Act only, as a town within one division of the said East Riding of the county of Cork.

Assistant barristers of certain counties to have jurisdiction in certain counties of cities and towns.

34. The respective assistant barristers for the time being of the counties herein-after mentioned shall have jurisdiction by civil bill in and for the respective counties of cities, counties of towns, cities, and towns herein-after named, as fully as they respectively have in and for their respective counties; that is to say, the assistant barrister of the county of Waterford, in and for the county of the city of Waterford; the assistant barrister for the county of Limerick, in and for the county of the city of Limerick: the assistant barrister for the county of Kilkenny, in and for the county of the city of Kilkenny; the assistant barrister for the county of Antrim, in and for the county of the town of Carrickfergus; the assistant barrister for the county of Galway, in and for the county of the town of Galway; the assistant barrister for the county of Louth, in and for the county of the town of Drogheda; and each and every of the said several counties of cities and counties of towns shall be deemed and taken, for the purposes of this Act only, as a town within one division of the said several and respective counties at large.

Jurisdiction in ordinary cases.

Limit of jurisdiction of assistant barristers.

35. It shall and may be lawful for each and every assistant barrister to hear and determine by civil bill all disputes and differences between party and party for any sum, damages, or penalty, not exceeding [¹ fifty] pounds sterling, in all cases whatsoever (slander, libel, breach of promise of marriage, and criminal conversation with a mans wife, only excepted), and for any ascertained and unpaid balance, not exceeding [¹ fifty] pounds, of a partnership account, and also in all actions by civil bill under any Act or Acts of Parliament now in force in Ireland, and not hereby repealed, giving a remedy by civil bill in any particular cases, to the extent and pursuant to the provisions of the said Act or Acts respectively: Provided always, that the several assistant barristers may award interest in all cases where in equity interest ought to be decreed, so that the debt or damages and interest shall not together exceed the amount of the jurisdiction, according to the nature of the case.

Cause of action not to be divided.

36. No cause of action in the whole amounting to a sum beyond such sum as is made recoverable by force of this Act shall be split or divided so as to be made the ground of two or more different actions, in order to bring such cases within the jurisdiction of this Act; but if any of the said assistant barristers shall find that the plaintiff in such cause shall have split his cause of action as aforesaid, he shall dismiss every such action, with the ordinary costs of a dismiss, without prejudice however to the plaintiff’s proceeding to sue upon such cause of action in any other court, and in such other manner as he lawfully may: Provided also, that if such plaintiff shall be satisfied to recover such sum as the jurisdiction hereby conferred is made to extend to, in full of the whole of such his demand, then such assistant barrister shall and may, if such plaintiff shall satisfactorily prove his case, make and pronounce one decree for such plaintiff for such sum as shall in such case be demanded by the process, so as such sum does not exceed the jurisdiction under this Act, and the same shall be expressed in such decree to be and shall be in full discharge of the whole of such demand.

Recited Act as to civil bill proceedings to apply to civil bill proceedings before assistant barristers.

37. [Recital of Irish Act, 15 Geo. 2. c. 8.] The provisions relating to proceedings by civil bill contained in the said Act of the fifteenth year of King George the Second, shall extend and apply to proceedings by civil bill before such assistant barristers, subject to the provisions and regulations of this Act; and all original proceedings by civil bill provided by the said Act passed in the fifteenth year of King George the Second, shall be brought in the respective courts of the several assistant barristers, and shall not be brought before any judge or judges of assize on their respective circuits, or in their respective courts at Dublin, save by way of appeal, as herein-after provided in relation to appeals.

Remedy of occupying tenant against immediate landlord when lands are distrained for rent due from the latter to a superior landlord, &c.

38. [Recital.] In all cases where the entire rent due and payable from the occupying tenant to his immediate landlord or landlords shall have been paid or in any manner satisfied, if, in consequence of the fraud, malfeasance, or neglect of such landlord or landlords to pay and satisfy the rent due and owing by him or them to any superior landlord or landlords, the lands in the hands of such occupying tenant shall be distrained for any such rent, or such occupying tenant shall have been compelled to pay any sum of money to any such superior landlord, to avoid a distress for rent due to such superior landlord, then and in every such case it shall be lawful for such occupying tenant to proceed against such his immediate landlord through whose default or neglect to make such payment the lands in the possession of such occupying tenant shall have been distrained or threatened to be distrained, to recover the amount of costs and damages by him sustained thereby, by civil bill before the assistant barrister of any county or riding where such lands shall be; and the amount of such costs and damages, when ascertained by the decree of such assistant barrister, and the amount of any costs and damages which may be ascertained by the judgment of any superior court, upon any action which may be brought for that purpose, may be tendered by the occupying tenant, or his or their representatives, in payment of so much of the subsequently growing and accruing rent as shall thereafter become due and payable to such his immediate landlord, and shall be accepted by such landlord in payment of the same, or shall be recovered by process of execution, as the said occupying tenant so aggrieved shall deem most advisable.

Recovery of damages in certain cases.

39. If on such trial by civil bill before the assistant barrister the complainant shall prove the facts of payment of rent by distress or otherwise to his immediate landlord, and of the subsequent seizure of his goods or stock under distress by a superior landlord, or his being compelled to pay any sum of money in or towards satisfaction of rent due to such superior landlord, to avoid any such distress, he shall be entitled to recover in damages, and shall so recover, upon such proof made of the facts herein-before mentioned, without any other or further proof of damages sustained, ten pounds in the hundred of the rent reserved and distrained for, in addition to the whole sum he shall have paid under such distress to the superior landlord, but shall not be precluded from entering upon proof of other more aggravated or special damage sustained, if he shall prefer such mode of proceeding for recovery of due and adequate compensation on such account.

[S. 40 rep. 16 & 17 Vict. c. 113. s. 53.].

Jurisdiction in replevin cases.

41. The respective assistant barristers shall and they are hereby authorized and empowered to hear and determine within their respective jurisdictions all actions of replevin relating to distresses for rent made by any landlord, or person claiming as such, where the annual rent reserved, for or in respect of which any distress shall have been made, shall not exceed fifty pounds, whether a greater annual rent may have been claimed by the landlord or not.

Appointment of replevingers.

42. The sheriff for the time being for every county, county of a city, or county of a town in Ireland shall, within ten days after he shall be sworn in as sheriff, depute a sufficient number of persons in such county, county of a city, or county of a town, to act as replevinger or replevingers in cases of distresses for rent, so that there shall be at least one such replevinger in every town wherein general or quarter sessions of the peace are held; and for every refusal or neglect to appoint within ten days a replevinger, or a sufficient number of persons to act as replevingers, as aforesaid, and also for every month during which there shall not be one such replevinger in each such sessions town, every such sheriff shall forfeit and pay the sum of twenty pounds, to be recoverable by civil bill by any person who will sue for the same; and such replevinger or replevingers so to be appointed as aforesaid shall have authority in the sheriff’s name to grant replevins and make do, . . .

Mode of proceeding by civil bill in replevin cases.

Execution of order to replevy on security being given by bond with sureties.

43. Where any party whose goods or chattels shall have been distrained for rent shall dispute the validity of the distress, and the annual amount of the rent in respect of which such distress shall or ought to have been made shail not exceed fifty pounds, it shall be lawful for such party to lodge with the clerk of the peace for the county, wherein such distress shall have been made a civil bill, . . . stating the particulars of the property distrained, and the place where, and the person or persons by whom or on whose behalf such distress was made, and requiring such person or persons to appear and answer such bill at the next general or quarter sessions of the peace for the division or district in which such distress was made, in case there shall be ten clear days between the day of lodging such civil bill and the first day of holding such sessions, and if not, then at the sessions for such division or district next after the expiration of ten days from the day of lodging such civil bill; and thereupon the said clerk of the peace shall issue an order . . . requiring the sheriff of the county to replevy the goods and chattels so distrained; and the sheriff to whom any such order shall be directed, or his replevinger, shall, and he is hereby required, upon good security being given to him by the bond of the person obtaining such order, and two or more responsible persons, not exceeding four in number, as sureties, in double the amount of the value of the property distrained, to execute such order, and make a correct and proper return in writing of the manner in which the same shall have been executed, or to signify the cause why the same has not been executed, to the court of the assistant barrister for the county or riding, within seven days next after such order shall have been delivered to him: Provided that the value of the property distrained shall be ascertained by the said sheriff or replevinger in like manner as the value of goods distrained is now ascertained by law by the said sheriff on taking security in replevins returnable to any of the superior courts at Dublin; . . .

If proposed sureties are rejected, the reason of the rejection shall be stated in writing.

Liability in case of insufficient sureties.

44. In every case where any of the persons who shall be proposed as sureties on behalf of any party whose goods or chattels shall have been distrained shall be rejected, the reason or ground of such rejection shall be stated in writing by the sheriff or replevinger so rejecting: Provided always, that nothing herein contained shall be deemed or taken to exonerate any sheriff from any liability by reason that he, or his replevingers, or any of them, shall have taken insufficient sureties in any such replevin.

Copy of civil bill to be served on defendant.

45. In every case where any goods distrained shall be replevied as aforesaid, a copy of the civil bill which shall have been lodged with the clerk of the peace as aforesaid shall be served, on the part of the plaintiff in such civil bill, upon every person named as defendant therein, in the same manner as civil bills for recovery of debts are hereby required to be served: Provided always, that in case the party on whose behalf such distress was made shall not reside within the jurisdiction of such assistant barrister, service of such civil bill on the person who made the distress for him, or on any bailiff who shall be in charge of the goods so distrained, shall be deemed good service on such party; and such party, although not residing within the county or riding, shall, for the purposes of this Act, be deemed and taken to be within the jurisdiction of the assistant barrister of the county or riding in which the distress was made.

Assistant barrister to hear and determine the civil bill.

46. The assistant barrister shall in every such case of replevin hear and determine the civil bill, and, if it shall appear to him that such distress was legally made, and that the annual rent in respect of which such distress was made did not exceed fifty pounds, shall ascertain whether any and what rent was due to the defendant at the time of making such distress; and if it shall appear that any sum was due for rent, and that no tender of the sum so due was made before the said civil bill was lodged, it shall be lawful for such assistant barrister, and he is hereby required, to ascertain the sum due for rent, and to make a decree for payment of the same, and the costs fur defending such civil bill, and of such distress; and such sum and costs shall and may be evied by virtue of such decree; . . . and in case it shall appear that no rent was due at the time of such distress, or that a tender was made of the amount due, together with reasonable costs of distress, previous to the lodging of such civil bill, or that such distress was illegally made, it shall be lawful for the assistant barrister to direct the bond which shall have been so given as aforesaid to be delivered up to the party complaining of the distress, and also to make a decree, . . . for payment by the defendant to such party of such damages as the court may think fit, and, if necessary, to direct that such damages and costs shall be set off against or deducted from any rent then due or thereafter to accrue due by the party complaining, and to make a decree accordingly.

[S. 47 rep. 38 & 39 Vict. c. 66. (S.L.R.)]

Bond to be assigned if plaintiff do not prosecute suit, &c.

Return and sale of goods.

48. In case the plaintiff in replevin shall not cause said civil bill to be served as herein-before mentioned, or shall not duly appear at the sessions, and there prosecute his civil bill, or, having appeared, his civil bill shall be dismissed because the annual rent in respect of which the distress was made exceeded fifty pounds, or by reason of his disputing that the person by or on whose behalf the distress was made was landlord as aforesaid and in every case where he shall not obtain a decree therein, the assistant barrister shall, at the request of any party named as a defendant in such civil bill, make an order that the bond so directed to be given to the sheriff as aforesaid shall be assigned to the defendant, or, if more than one, to such of the defendants as he shall think fit; and such bond shall be assigned by the sheriff or his representative to such person or persons as the assistant barrister shall direct; and such assignment shall be by an indorsement, signed by the sheriff or his representative, on the bond, to the effect following, that is to say,

‘I, A.B., sheriff of         , do hereby assign the within ‘bond to         , his executors or administrators, this ‘         day of         .’         Which indorsement shall not require any stamp; and such bond shall be and stand as a security for the full amount of the value of the goods distrained, and the costs of the proceedings in relation to the distress and of the proceedings on such civil bill and on such bond; and the assignee of such bond shall be at liberty to sue in his own name, upon such bond, all or any one or more of the obligors thereof in the court of the assistant barrister within whose jurisdiction any one of such obligors shall reside, without regard to the amount of the penalty of such bond; and it shall be lawful for the assistant barrister to order that the goods distrained shall be returned to the party who distrained the same; and in every such case, where the goods distrained shall be actually returned to the party who distrained the same, and the costs of the proceedings paid, no further proceeding shall be had on the bond which shall have been given as aforesaid; and all such goods, if returned or recovered under any such decree as aforesaid, may be sold for the recovery of the rent due and expences, not sooner than after the expiration of the second day after the day of the return thereof.

Legacies and distributive shares payable out of assets of any deceased person (when assets do not exceed 200l.) may be recovered by civil bill.

49. Where the amount of the assets of any deceased person shall not exceed in value the sum of two hundred pounds, it shall and may be lawful for any legatee of any specific chattel, or for any legatee of any pecuniary legacy payable out of the assets of any such deceased person, or for any residuary legatee, or for any person or persons entitled as next of kin of any such deceased person, or the executors, administrators, or assigns of such legatee or next of kin, and they and each of them are and is hereby authorized and empowered, to proceed by civil bill against the executor or administrator of sach deceased person in the county or riding in which such executor or administrator, or one of such executors or administrators, in case there shall be more than one, shall be resident, for the recovery of such legacies or distributive shares, at anytime after the expiration of one year from the decease of the testator or intestate, but not sooner; . . . and it shall and may be lawful for such assistant barrister, upon due proof that the defendant had received, or without wilful default might have received, assets of the testator or intestate sufficient, and liable, after payment of all just debts, for the satisfaction in a due course of administration, either in the whole or in part, of the plaintiff’s demand, to make a decree for payment of such legacy, . . . or to make a decree for payment of the distributive portion rateably and proportionably with other legatees standing in the same situation, or other next of kin respectively, as the case may be, . . . and in case the plaintiff shall establish his right to any specific chattel, it shall and may be lawful for such assistant barrister to make an order for delivery of the same to the party entitled thereto, or to make a decree for payment of the value thereof, and costs of suit; and in case the plaintiff shall establish his right as residuary legatee, it shall and may be lawful for such assistant barrister to make an order for the delivery, transfer, or payment of such residuary estate and effects to the party decreed entitled thereto.

Executors and administrators to lodge accounts, if required.

50. Where the property or assets of any deceased person shall not exceed in value the sum of two hundred pounds, every executor or administrator shall, if thereunto required by notice in writing by any legatee, next of kin, creditor, or other person interested therein, at any time after twelve months from the decease of the testator or intestate, lodge with the clerk of the peace of the county wherein such testator or intestate resided at the time of his death, and, if he shall reside in a county different from that in which such testator or intestate resided, also in the county wherein such executor or administrator resides, a schedule or account, setting forth the particulars of the property or assets which the testator or intestate died possessed of or entitled to, and the amount, produce, and value of the same respectively, and the amounts and particulars of the debts due by the said testator or intestate, and the amounts and particulars of the debts, legacies, and funeral and testamentary expences of the testator or intestate paid by or on account of any such executor or administrator, and showing the balance applicable to the purposes of the will of the said testator, or distributable amongst the next of kin of the said intestate, or the property or chattels then undisposed of; and every such schedule or account shall be signed by such executor or administrator, and verified by the oath or affirmation (as the case may be) of the executor or administrator to be sworn or made before the clerk of the peace for the county wherein such executor or administrator resides, and which oath or affirmation the said clerk of the peace is hereby authorized and required to administer; and such schedules or accounts shall be preserved and kept by the clerks of the peace amongst the records of their respective counties or ridings, and shall be deemed and taken as evidence against the said executor or administrator of the several matters therein contained; and in case any such executor or administrator shall neglect to lodge such schedule or schedules as aforesaid within the time herein-before specified, he shall forfeit any sum not exceeding twenty pounds, to be recoverable by civil bill before the assistant barrister of the county wherein such executor shall reside, by any person so requiring such account.

Examination of executors and administrators.

51. In all proceedings by civil bill by any legatee or next of kin for recovery of any legacy or distributive share as aforesaid, it shall and may be lawful for the plaintiff as such legatee or next of kin in such civil bill as aforesaid to examine such executor or administrator on oath in open court, if the court shall deem it necessary, in order to obtain a discovery of the estate and effects of the testator or intestate at the time of his or her decease, and the value thereof, and of his or her debts, funeral and testamentary expenses, and to obtain an admission that the defendant is the executor or administrator (as the case may be), and to ascertain all such facts of which a party suing as legatee or as next of kin in a court of equity is entitled to a discovery.

Executors and administrators to produce probate of will and letters of administration, and to submit to be examined on oath on trial of civil bill.

52. Every executor or administrator may be compelled by summons, to be issued and signed in the manner herein-after prescribed for witnesses summoned to give evidence in civil bill courts, to attend and produce the probate (if any) of the will of the testator or the letters of administration of the testator or intestate (as the case may be), and submit to be examined on oath in open court touching the matters aforesaid on the trial of any such civil bill in any division where such cause shall be heard; and every executor or administrator who shall disobey any such summons shall forfeit and pay, to the party at whose request such summons was issued, the sum of ten pounds, as a penalty; but such fine or penalty may be reduced or wholly remitted, if the assistant barrister before whom he shall have been required to attend shall, upon good and sufficient cause being shown, think fit to reduce or remit the same.

Advertisements for claims on the property of the deceased.

53. It shall be lawful for any assistant barrister, in any civil bill proceeding for a legacy or a distributive share of the property or assets of a testator or an intestate, to order the party suing to give notice, either by advertisement or otherwise, requiring persons having claims on the property or assets of the deceased to produce and verify such claims; and no such advertisement shall be charged with or liable to any duty; and all costs relating to such notice shall be borne and paid in such manner and by such parties as such assistant barrister shall order or direct; and the assistant barrister may, if he shall think fit to direct such notice to be given, adjourn the hearing of the civil bill to some future sessions, and from time to time as occasion may require, so as to allow sufficient time for publishing or giving such notice.

Order for payment of money into the Bank of Ireland.

54. In any such action or proceeding the assistant barrister may, if he shall think fit, order money to be paid into the Bank of Ireland, or such branch bank of the Bank of Ireland as he shall direct, in the name of such clerk of the peace, to the credit of the cause in question; and such money shall be applied and disposed of according to the order and directions of the assistant barrister; and all payments of such monies shall vest in the clerk of the peace for the time being, and shall be made upon an order in writing under the hand of the clerk of the peace, countersigned by the assistant barrister, which order shall be a good and sufficient warrant to all intents and purposes.

Recovery of legacies and arrears of annuities not exceeding 20l. charged on real estate.

55. It shall and may be lawful for any legatee of any pecuniary legacy not exceeding twenty pounds charged upon or payable out of any real estate or any chattel real, or for any person to whom arrears not exceeding twenty pounds are due in respect of any rent-charge or annuity charged upon or payable out of any real estate or chattel real, to proceed by civil bill against the person who shall be entitled to the real estate or chattel real charged with such legacy or arrears; and it shall and may be lawful for the assistant barrister, upon due proof by the plaintiff that such real estate or chattel real is liable to such legacy or arrears, unless the owner thereof shall satisfy the said assistant barrister that he has not received therefrom, for his own use and benefit, a sum equal to the amount of the legacy or sum sought to be recovered, and which was properly applicable to the payment thereof, or that there is personal property liable to the payment thereof available for that purpose, to decree the payment of such legacy or arrears by the owner of such real estate or chattel real.

Recovery of legacies and arrears of annuities not exceeding 20l. payable out of personal estate.

56. It shall and may be lawful for any legatee of any pecuniary legacy not exceeding twenty pounds, payable out of any personal estate, or for any person to whom arrears not exceeding twenty pounds are due in respect of any annuity payable out of any personal estate, (whatever may be the amount of such personal estate,) to proceed by civil bill against the executor or administrator of such personal estate; and it shall and may be lawful for the assistant barrister, upon due proof by the plaintiff that such personal estate is liable to such legacy or arrears, and that the executor or administrator thereof has received therefrom sufficient assets applicable to the payment thereof, and available for that purpose, to decree the payment by such executor or administrator of such legacy or arrears, or of such part thereof as such available assets will extend to pay.

Executors de son tort to be liable.

57. Any person rendering himsell an executor de son tort shall be liable to be sued by civil bill, as if he were a rightful executor, in the manner and to the extent herein mentioned respecting rightful executors; provided that such executor de son tort shall not be liable beyond the amount of the assets actually received by him.

Parties.

Where persons jointly liable do not all reside within the jurisdiction, those who do so reside may be sued.

58. Where any person shall have any demand recoverable under this Act against two or more persons jointly liable, it shall and may be lawful for him to sue by civil bill all such persons so jointly liable who shall reside within the county or riding in which such civil bill shall be brought, and a decree may be made and execution issued against the person or persons so sued, notwithstanding that any other or others jointly liable may reside out of the jurisdiction of such assistant barrister.

Assistant barrister may sue and be sued in adjoining county.

59. If any assistant barrister shall have any cause of action, in replevin or otherwise, against any person residing within the county or riding in which he shall act as such assistant barrister, or if any person shall have any cause of action, in replevin or otherwise, against an assistant barrister who shall reside within the county or riding in which he shall act as such assistant barrister, then and in every such case such assistant barrister shall sue or may be sued in the civil bill court of any of the next adjoining counties, and nearest to the residence of the defendant, or any of the defendants if more than one; and service of the process in the county or riding in which the defendant shall reside, made by any process officer of such county, or by any process officer of the county in which the process is intended to be heard, shall be deemed good service on such defendant to appear before the assistant barrister at the sessions of such adjoining county, who shall have jurisdiction to hear and determine such civil bill; and the decree or dismiss of such last-mentioned assistant barrister shall have full force and effect in and shall be executed by the sheriff or sheriffs bailiff of the county in which the party against whom the said decree or dismiss has been made shall reside: Provided always, that in every such case the reason for bringing such civil bill in such next adjoining county shall be stated upon the civil bill process: Provided also, that if the service of such process shall be made by any process officer of the county in which the defendant resides, such service may be verified by an affidavit of service by him made before any justice of the peace of the county in which such service was effected, who is hereby authorized and required to take the same: and for every such service and affidavit such process officer shall be entitled to a fee of two shillings and sixpence, and no more.

Form of civil bill process.

60. . . . it shall not be necessary that any civil bill process shall be signed by any attorney, or by the clerk of the peace, or by the assistant barrister, or any other officer, but it shall be sufficient if the same be signed by the plaintiff or any one or more of the plaintiffs therein mentioned, or by any other person on behalf of the said plaintiff or plaintiffs: Provided always, that in all ejectment cases the civil bill process shall be signed by an attorney, who shall set forth his place of residence thereon.

Civil bills, decrees, and dismisses to contain addition and residence of parties, &c.

61. Every civil bill process, and decree or dismiss had thereon, under this Act, shall contain the addition and last known place of residence of the parties, plaintiffs and defendants; and in case of the omission thereof any such civil bill, unless amended under the provisions of this Act, or decree or dismiss, shall be null and void to all intents and purposes whatsoever: Provided always, that it shall be sufficient to describe corporate bodies or joint stock companies, whether plaintiffs or defendants, by the proper and respective titles in which they are entitled to sue or be sued, without inserting any addition or place of residence; and where the Attorney-General shall be a party on behalf of the Crown, it shall not be necessary to set forth his addition or residence.

Stamps on forms of civil bill process and copies.

62. [Recital.] The forms next herein-after mentioned hereby provided to be used shall be severally subject to the following stamp duties payable to her Majesty; that is to say,

And in the event of the plaintiff’s obtaining a decree the amount of such stamps shall be charged against the defendant or defendants as part of the cost of his proceeding; and printed forms, with such stamp on each as aforesaid, shall be issued from the office of the Commissioners of Inland Revenue to the several distributors of stamps in Ireland, under such regulations as the said commissioners shall make for the sale of the same by the several sub-distributors of stamps or by any other persons; and any such sub-distributor of stamps, or other person, who shall, without express authority from the said commissioners for such purpose, demand or receive for any one of such forms, from any person whatever, any greater sum of money than the amount of the stamp duty on such form, or who shall in any other way offend against such regulations as aforesaid, or against any other regulations made or to be made by the said commissioners, and which shall be from time to time in force as to any other stamps, shall be liable to the same forfeitures and punishments as are by any Act or Acts provided for any like offence in respect to any other stamps issued by the said commissioners: Provided always, that if it shall appear to the court upon the hearing of any civil bill that any original civil bill, process or notice of renewal or any copy thereof served upon any defendant shall not have been duly stamped, or had been previously used as a process, notice, or copy thereof in any other suit, the several and respective assistant barristers are hereby required forthwith to dismiss the said civil bill, and to order and direct that the original process, notice, or copy thereof so wanting the said stamp required by this Act shall be held and impounded by the clerk of the peace.

Penalty on distributors of stamps or others taking more than stamp duty chargeable on printed forms.

63. If any sub-distributor of stamps or other person whatsoever shall (without express authority for such purpose from the said commissioners), by himself, or any other for his use or profit, ask, demand, receive, or take any greater sum of money or other thing for any one such printed form than the sum which is hereby made chargeable thereon to her Majesty as and for the stamp duty on such printed form, and so in proportion for any greater number of such printed forms, such person so asking, demanding, receiving, or taking, or the person for whose use and benefit such greater sum of money or other thing shall be asked, demanded, received, or taken, by the authority of or consent, direction or approbation of such person for whose use and benefit the same shall be asked, demanded, received, or taken, shall forfeit and pay to the person injured the sum of five pounds, to be recovered by civil bill to be brought by such person within twelve months from the time of such offence committed: Provided that the plaintiff in such civil bill may, at his election, sue either the person who shall have so asked, demanded, received, or taken such greater sum or other thing, or the person for whose use or benefit such greater sum or other thing was so as aforesaid asked, demanded, received, or taken, but not both of them.

Duties hereby granted to be stamp duties under management of Commissioners of Inland Revenue.

64. The said stamp duties by this Act imposed and granted shall be denominated and deemed to be stamp duties, and shall be under the care and management of the Commissioners of Inland Revenue for the time being; and all the powers, provisions, clauses, regulations, and directions, fines, forfeitures, pains, and penalties, contained in or imposed by the several Acts of Parliament relating to any duties of the same kind or description in Great Britain and Ireland respectively, and in force at the time of the passing of this Act, shall respectively be of full force and effect with respect to the stamp duties by this Act granted or imposed, as fully and effectually to all intents and purposes as if the same had been herein repeated and specially enacted with reference to the said stamp duties by this Act granted or imposed.

Service of process.

65. Service of any civil bill process on the defendant shall be effected, either by personal service of the civil bill process, or by leaving a copy thereof at the defendant’s house or place of residence, or at his office, warehouse, counting-house, shop, factory, or place of business, with the wife, child, father, mother, brother, sister, or any other relation of the defendant, or his wife, or with any servant or clerk of the defendant, (the person with whom such copy shall be left being of the age of sixteen years or upwards). . . ; and no decree, other than a decree in ejectment or replevin, shall be made by any assistant barrister unless the process in such cause shall, by the oath of the process officer in open court before the said assistant barrister, or by the production of the books of the process officer in the cases herein-before provided, be satisfactorily proved to have been duly served, and unless it shall be proved that the house or place of residence in which the defendant, or, in the case of more than one defendant, in which one of the defendants, shall at the time of such service have usually resided, or that the office, warehouse, counting-house, shop, factory, or place of business of the defendant or one of the defendants is situate within such division of the county where the said court is held at which the said defendant or the said defendants shall be required to appear.

As to service of process on lodgers.

66. Where any defendant in any civil bill shall be a lodger in any house in which his landlord shall also reside, service of any civil bill process within such dwelling house upon such landlord so residing, or upon the wife, child, or servant, being of the age of sixteen years or upwards, of such landlord, . . . shall be deemed good service of such civil bill process upon the said defendant: Provided that it shall appear to the satisfaction of such assistant barrister that due diligence had been used to effect personal service upon the defendant, or service upon his wife.

Service of process on relative or servant of defendant cut-side his dwelling house.

67. If the wife, child, father, mother, brother, sister, or other relative of the defendant in any civil bill process, or of his wife, or any servant of the defendant, who respectively usually resides with the said defendant, shall be outside the dwelling house or place of residence of the defendant, but within reasonable distance, it shall and may be lawful for the process officer to deliver to the said wife, child, father, mother, brother, sister, or other relative of the said defendant, or of his wife, being of the age of sixteen years or upwards, so usually residing with the said defendant, or to such servant of the said defendant, a copy of the said process for the said defendant, outside the dwelling house or place of residence of the said defendant, and within such distance as aforesaid from the same; and such service of process shall be deemed as good and effectual to all intents and purposes as if service on any of said parties of said copy of said process had been effected within the said dwelling house or place of residence: Provided always, that at the time of such service personal service on the defendant, or service on any person within such dwelling house, lodging, or place of residence, could not have been effected.

Time for service of processes.

68. The civil bill process shall, in all cases of ejectment, and in all cases for the recovery of legacies, and distributive shares of assets, and in all cases where the demand shall exceed twenty pounds, be served fifteen clear days before the first day of the sessions; and in all other cases every civil bill process shall be served six clear days before the first day of the sessions, unless otherwise provided by any Act or Acts giving the jurisdiction in the particular case, and not hereby repealed, and then so as required by such Act or Acts; and in no case whatsoever shall any civil bill process be served on Sunday, Good Friday, or Christmas Day, and service upon any of said days shall be absolutely null and void.

Defendant not to be sued out of the division in which he resides, except as herein specified.

69. No defendant shall be liable to be sued or proceeded against by civil bill under this Act or obliged to appear in any cause to be heard and determined at any session or adjournment thereof to be held out of the division in which he usually resides, unless there shall be more than one defendant in such cause, in which case the plaintiff shall be at liberty to bring his civil bill in such division of the county where any one of the defendants shall so reside: Provided always, that if any person shall have and occupy any house, warehouse, counting-house, shop, factory, or office for the sale of goods, or for carrying on any business, in any county, he shall be deemed to have a residence within such county for the purposes of this Act.

Service in case of forcible resistance.

70. In any case where it shall appear to the assistant barrister, by examination on oath in open court, that any officer appointed to serve the process of the said civil bill court has been prevented by forcible resistance, or by reasonable apprehension of personal injury, from effecting service of any process of the said court, it shall and may be lawful for such assistant barrister in every such case to direct, by an order to be signed by him, and entered in the book of the clerk of the peace, that posting a copy of a civil bill process on the court house in which the court may be then sitting, and on the usual place for posting notices in the nearest market town to the residence of the defendant named in such process, or of one of the defendants if there be more than one, at least twenty-one days before the first day of the next sessions to be holden for the same division of the county or riding, shall be deemed good service of such process; and at foot of every such copy shall be affixed a notice that the same is so posted by order of the said assistant barrister, and that such process will be held good service thereof; and upon its being proved on oath to the satisfaction of the assistant barrister at the next sessions holden for the same division that such copy and notice have been so duly posted, it shall be lawful for such assistant barrister, and he is hereby authorized and required, to proceed to hear and determine such civil bill in all respects as if the process thereon had been personally served on the defendant or defendants named therein.

[Ss. 71–78 rep. 55 & 56 Vict. c. 19. (S.L.R.)]

Ejectments.

Power to determine disputes respecting possession of land in certain cases.

79. The several assistant barristers, and the recorder of Dublin, and the several recorders herein mentioned, shall and they are hereby authorized and empowered to hear and determine within their respective jurisdictions all disputes and differences respecting the possession of any lands, tenements or hereditaments held under any grant, lease, or other instrument for any term or interest the duration or extent whereof when originally granted or created did not or shall not exceed three lives, without any provision for the renewal thereof, or a term of sixty-one years determinable on three lives, or three lives with a concurrent term of years not exceeding sixty-one years, or a term of sixty-one years absolute, and the yearly rent reserved or payable in respect whereof under such grant, lease, or other instrument shall not exceed [¹ thirty] pounds, and in respect of which no fine exceeding [¹ thirty] pounds shall appear on the face of such grant, lease, or other instrument to have been paid on the granting or execution of such grant, lease, or other instrument, . . . or held for any term or tenancy from year to year at a rent not exceeding such amount as aforesaid; and every person claiming such possession may proceed by civil bill in the court for the division of the county or riding wherein such lands, tenements, or hereditaments or any part thereof shall be situate, for recovery of such possession.

[S. 80 (disputes as to possession of lands held under acknowledgments according to Form (11) in Schedule (C.) to this Act) rep. 23 & 24 Vict. c. 154. s. 104.]

Service, &c. of bill in such cases.

81. [²] Every civil bill process brought for the recovery of the possession of any lands, tenements, or hereditaments held in the manner specified in either of the two immediately preceding provisions, shall be duly served upon all and every person or persons who shall be in the actual possession of the lands, tenements, or other hereditaments specified in and claimed by any such civil bill, and also such other person or persons (if any) as shall be interested in the same or in any part thereof under any registered conveyance; and if there be not any person in the actual possession of such lands, tenements, or hereditaments, then the affixing of such civil bill to or upon some conspicuous part of the premises so claimed, and upon the door or gate or one of the piers of the door or gate of the parish church (if there shall be any in the parish), and also upon the door or gate or upon one of the piers of the door or gate of the Roman Catholic chapel (if there shall be any in the parish wherein the said premises shall be situated), shall be and be deemed to be good and sufficient service of such civil bill; and it shall be lawful for the assistant barrister to make an order or decree for the delivering up of possession of such lands, tenements, or hereditaments to the party entitled thereto.

Ejectment against servants, caretakers, and tenants at will.

82. [Recital.] If any person who shall have been heretofore, or shall hereafter be, by the owner of any land, tenements, or hereditaments, or by his agent, receiver, or bailiff, put or let into occupation or possession thereof by permission, or as servant or caretaker, or as tenant strictly at will or by sufferance, shall refuse or omit to quit and deliver up possession of the said premises, on demand made by the owner thereof, or his known agent or bailiff, it shall and may be lawful for such owner, his heirs, executors, administrators, or assigns (after such demand and refusal or omission to deliver up the same), to proceed by civil bill ejectment process for the recovery of the possession thereof against such person or persons so in occupation or possession, or any person or persons being or claiming to be in occupation or possession by, through, or under such person or persons; and it shall and may be lawful for the respective assistant barrister or recorder to hear and determine such civil bill in the same or like manner as he is hereby empowered in cases of ejectment against over-holding tenants, and to make a decree or dismiss thereon: Provided always, that nothing in this provision contained shall be deemed to affect or prejudice any right or remedy which any such owner of land, his heirs, executors, administrators, or assigns, might have used or exercised in such case for taking or obtaining the actual possession of such premises, if this Act had not been passed.

[S. 83 rep. 55 & 56 Vict. c. 19. (S.L.R.)]

Where lands in question are situate in two or more counties, proceedings shall be in any one of them, &c.

Assistant barrister, &c. to have jurisdiction in a city or town which is a county of itself.

In case assistant barrister, &c. sues for lands situate in pan in his own jurisdiction, proceedings shall be had in the county without his jurisdiction.

84. [¹] If any lands, tenements, or hereditaments, touching which any proceeding by civil bill shall be had in pursuance of this Act, shall be situate in two or more counties, such proceeding shall be in any one of such counties; and the sheriffs of the respective counties in which any part of such tenement or premises shall be, and in which such proceedings shall not be had, shall, so far as relates to the portion of such tenement or premises within their respective bailiwicks, execute such decree as shall be made on such civil bill, upon delivery to him or them of a copy thereof, signed by the assistant barrister or recorder who shall have made such decree: Provided always, that if any tenement shall be situate in the whole or in part within the county of any city or town which is a county of itself except the county of the city of Dublin, the assistant barrister of the county at large having jurisdiction for other purposes within such county of a city or town, and the justices of the peace for such county at large, shall have the same jurisdiction and exercise the same powers with respect to such tenement as if the same had been situate in the county at large, anything in this Act or any law or usage to the contrary notwithstanding: Provided also, that in all cases where it may happen that the assistant barrister, or the said recorder, as the case may be, shall be the landlord, lessor, or owner, or shall claim to be entitled to the possession of any lands, tenements, or hereditaments situate in two or more counties, and where any part of the same shall be situate within his respective jurisdiction, and that he shall be desirous to institute proceedings in respect of the said tenements or premises under or by virtue of this Act, such proceedings shall be in the county or place without the jurisdiction of such assistant barrister, or recorder, where the other part of such lands, tenements, or premises may still be situate.

Assistant barrister, &c. may sue for lands wholly in his own jurisdiction before the assistant barrister of an adjoining county.

85. [¹] And whereas it is reasonable, in cases where it may happen that any assistant banister, or the recorder, is the landlord or lessor of or claims to be entitled to the possession of any lands or tenement within his own jurisdiction, that provision should be made for extending to such assistant barrister or recorder the benefits of this Act: Be it therefore enacted, that in every such case it shall and may be lawful for such assistant barrister, or recorder to proceed by way of civil bill respecting such lands or tenements before any assistant barrister of any of the counties next adjoining to that wherein such lands or tenements shall be so situate, in the same manner as any other landlord or claimant might proceed respecting any other tenement before such assistant barrister; and an appeal shall lie from any decree of such assistant barrister upon such civil bill to the judge at nisi prius, or the next going judge of assize, as the case may be, in the same manner, and subject to the same restrictions, conditions, and limitations, as are applicable to other civil bill decrees and dismisses, as herein provided.

Service of notices, &c. where defendant in ejectment does not reside on the lands.

86. [¹] Whenever it shall happen that the defendant in any ejectment proceeding brought for the recovery of any lands, tenements, or hereditaments under the provisions of this Act shall not be resident on such lands, tenements, or hereditaments, the delivery of any notice or process to such defendant in person, or, at the dwelling house or place of residence of such defendant, to his wife, or to any child or servant of such defendant, or to the father, mother, brother, sister, or other relation of the said defendant or of his wife residing with the said defendant, and being of the age of sixteen years or upwards, shall in all cases be deemed good and sufficient service of any such notice or process, although such defendant or defendants shall not be resident, or his or their dwelling house or houses or place of residence shall not be situate, on the lands or tenements comprised in such ejectment, or to which such notice or process shall relate, any law, usage, or custom to the contrary in anywise notwithstanding: Provided always, that if a defendant shall have gone out of Ireland, and shall have left his wife and family residing in the dwelling house usually occupied by him while in Ireland, service of the process in ejectment upon his wife or any member of his family, being of the age aforesaid, at such dwelling house, shall be deemed and taken as good service of the process upon the defendant, so as to enable the landlord or owner to obtain a decree for the possession of said lands.

Fixing of processes, &c. in ejectment in case of lands in extra-parochial places.

87. [¹] If any lands or tenements, or any part of any lands or tenements, for which any proceeding by civil bill ejectment shall be had under the authority of this Act, shall be in any extra-parochial place, and there shall be any chapel or place of public worship in such extra-parochial place, all processes and copies of certificates before required to be fixed on the door or gate or on the pier of the door or gate of a parish church or Roman Catholic chapel in places not extra-parochial shall be fixed on the door or gate or on one of the piers of the door or gate of such church, chapel, or place of public worship in such extra-parochial place; and if there shall be more than one such church, chapel, or place of worship, then such affixing upon any one, in manner aforesaid, shall be sufficient.

[S. 88 rep. 23 & 24 Vict. c. 154. s. 104.]

Assistant barrister to sign two copies of ejectment decrees and memorial thereof for registry.

Effect of registering decree.

89. In all cases of ejectment by civil bill, as between landlord and tenant, except where the proceedings shall be grounded on nonpayment of rent, the assistant barrister or recorder shall, if required, sign two copies of every decree which shall be made, and also a memorial thereof, for the purpose of registry in manner herein after mentioned; and his affixing his signature to one of the said copies shall be witnessed by some person present at the time of such signature; and it shall and may be lawful for the landlord or lessor, if he thinks proper, at any time between the termination of the assizes for the county then next ensuing and the commencement of the assizes thereafter next following, to register one copy of the said decree in the office for the registry of deeds and wills in Ireland, by lodging a memorial, and proving the perfection of the same, in like manner as is now provided by law for the registering of deeds; and from and after the registry of the said decree it shall have the further effect of a conveyance to the said landlord or lessor of any interest which the tenant, or any person claiming under him, may or might have in and to the said lands and premises, freed and discharged from all leases, contracts, mortgages, debts, charges, or incumbrances, which the said tenant, or any person claiming under him, may have charged, made, or created thereon.

Penalty for demanding a greater fee for the registry of a decree than for the registry of a deed.

90. If any person in the said office for the registry of deeds in Ireland shall demand or take any greater fee, gratuity, or sum of money, for or on occasion of the registry of any of the said decrees, than he is now by law entitled to for the registry of a deed, he shall forfeit the sum of one hundred pounds for every such offence, to be recovered in an action of debt by any person suing for the same.

Clerks of the peace, &c. to keep books in which decrees in ejectment shall be entered.

91. The clerk of the peace of each county . . . shall enter in a book to be kept for that purpose all decrees in ejectment which shall be made at any sessions of the peace of such county or county of a city; and which entries shall specify the names of the plaintiffs and defendants, and the tenements recovered, as the same shall be specified in the civil bills concerning the same; which book every person shall have liberty to inspect and examine, paying to the clerk of the peace . . . for such inspection and examination the fee of one shilling and eight-pence; and the said clerk of the peace, . . . within three days next after the close of each session of the peace, shall post on the outside of the door of the court house where such sessions were held a correct list of such causes in which any tenements shall have been recovered at such sessions under this Act, which list shall specify the parties’ names, and the description of the tenements as set forth in the civil bill upon which the same shall have been recovered, upon pain of forfeiting for every such omission the sum of ten pounds, to be recovered by civil bill by any person suing for the same: Provided always, that the omission to make such entry or posting shall not invalidate, or in any way affect, any decree, or the recovery of the possession of any lands or premises.

Taxation of costs in ejectment.

92. [¹] It shall and may be lawful for the assistant barrister, or recorder, and they are hereby respectively required, in cases of civil bill ejectment, on the request of either party or his attorney, to tax the costs between party and party, and to include the same in the decree or dismiss, as the case may be, and further, on the like request, to tax costs between attorney and client upon any proceedings that shall have been taken, or may hereafter be taken, for the recovery of the possession of lands or tenements under the provisions of this Act; and no clerk of the peace shall have any power to tax the same, and no fee shall be payable for such taxation; and no attorney shall be entitled to recover any sum against any client for or by reason of any proceedings in ejectment under this Act, or any preparation for such proceedings, unless the same shall have been previously taxed in manner herein provided; and it shall and may be lawful for the assistant barrister or recorder, and they are hereby respectively required, to examine upon oath (which oath they are hereby respectively authorized to administer) the attorney seeking to charge such client, as to all matters and things which it may appear to the said assistant barrister or recorder necessary to ascertain for the due taxation of the said costs: Provided always, that no sum shall be allowed to the plaintiff’s attorney for any searches for incumbrances affecting the lands and tenements, unless he shall have received directions in writing from the plaintiff or his land agent authorizing him to make the same.

[S. 93 rep. 55 & 56 Vict. c. 19. (S.L.R.)]

Assistant barrister may order costs to be paid by one or more of the defendants in ejectment.

94. [¹] It shall and may be lawful for the assistant barrister or recorder, upon the hearing of any ejectment, where there shall be more than one defendant, upon his pronouncing a decree, to order and direct that the costs of such ejectment proceedings shall be paid by and recovered from one or more of such defendants by name, and not from the other or others of them.

[S. 95 rep. 27 & 28 Vict. c. 99. s. 60.]

Title to lands, &c. not to be drawn into question.

96. [¹] The title to lands, tenements, and hereditaments (except in the cases herein-before mentioned) shall not be drawn into question in any proceeding by civil bill under this Act; and every defendant in every civil bill shall be entitled, on the hearing of such civil bill, to every defence which he may have at law or in equity.

Regulation of the courts.

Courts to be courts of record.

97. The courts held by the recorder of Dublin, or assistant barristers, and every of them, for hearing and determining causes by civil-bill as aforesaid, shall be respectively courts of record.

Time for sittings of civil bill courts and quarter sessions.

98. The court for the hearing of civil bills, and of quarter sessions, shall, after the first day of every sessions, commence its sittings in the months of December and January, not earlier than nine nor later than ten of the clock in the forenoon, and in other months not later than nine of the clock in the forenoon, save when prevented by the illness or unavoidable absence of the assistant barrister, or other fatality, and shall at once proceed with the criminal or civil business, after the assistant barrister shall be in attendance; but no decree or proceeding shall be in any manner impeached or questioned in consequence of any trial or civil bill having been commenced or heard at any time before or after any of those hours; and no trial or case, criminal or civil, or other business, shall be entered upon after the hour of six of the clock of the afternoon of any day, . . .

Order of hearing civil bills.

Civil bills may be heard in baronial or other divisions.

99. All civil bills, save ejectments and replevins, shall be heard and determined at every sessions in alphabetical order according to the surnames of the plaintiffs, and be entered accordingly in the book of the clerk of the peace, save and except in any case or cases where the assistant barrister shall see reason to vary the same: Provided always, that nothing herein contained shall prevent any assistant barrister from hearing and determining such civil bills in such baronial or other divisions as to him shall seem meet; provided that within such divisions they shall be heard and determined in alphabetical order as aforesaid; and provided that such assistant barrister shall give three months’ motice of his intention to hear and determine such civil bills in such baronial or other divisions.

Jury may be summoned for trial of all actions for above 20l. except in ejectment and replevin.

100. In all actions other than in ejectment and replevin, when the amount claimed shall exceed the sum of twenty pounds, it shall be lawful for the plaintiff or defendant to require a jury to be summoned to try the said action, and such jury shall be summoned in the manner herein-after mentioned: Provided always, that the party requiring a jury to be summoned shall, eight days previous to the first day of the sessions at which said jury may be so required, give to the sheriff or leave at his office a notice in writing setting forth that a jury was demanded by such party for the trial of such action; and such notice shall contain the names of the parties to the said action, and the sessions to which said process is returnable; and the said jurors so to be summoned by the sheriff shall be taken from the list of persons now or at any time hereafter liable to serve as jurors at the assizes or quarter sessions of the respective counties; and the sheriff shall cause so many of the jurors of the said court as, in his opinion, he shall deem sufficient (but not less than twelve) to be summoned to attend the said court at a time and place to be mentioned in the said summons; and the persons so summoned shall attend at the court at the time mentioned in the summons . . . : Provided also, it shall be lawful for the said sheriff to summon any person to act on such jury for the trial of such actions as aforesaid who may be summoned to serve on juries for the trial of criminal cases at the same sessions: Provided also, that whenever there are any jury trials, six jurymen shall be empannelled and sworn, as occasion shall require, to give their verdicts in the causes which shall be brought before them in the said court, and, being once sworn, shall not need to be re-sworn at each trial; and the jurymen so sworn shall be unanimous in their verdict: Provided also, that all civil bill cases which shall be tried by any such jury shall be tried and heard on such day of the sessions to which such civil bill process shall be returnable, as to the assistant barrister shall seem fit: Provided always, that in case any assistant barrister upon any hearing, or any judge of assize upon any appeal, shall think it proper to have any fact or facts controverted in any cause at hearing before him tried by a jury, in such case a jury, consisting of not less than three nor more than twelve persons, shall be returned instantly by the proper officer to try such fact or facts as shall seem doubtful to such assistant barrister or judge; and the assistant barrister or judge shall proceed to make his decree or dismiss on the verdict of such jury, or as he shall deem fit.

Power to issue summonses to witnesses.

Fine for non-attendance.

Expences of witnesses summoned from another county to be taxed and awarded against the unsuccessful party.

Proof of handwriting of party or subscribing witness when out of jurisdiction.

101. For the purpose of procuring the attendance of witnesses in the civil bill courts, it shall and may be lawful for the respective clerks of the peace of or acting for the several counties and counties of cities and towns in Ireland, upon the request of any person, a party to any proceeding by civil bill, whether ejectment or other, to issue a summons in the nature of a subpœna ad testificandum or duces tecum, directed to any person in Ireland, requiring him personally to appear and give evidence before the assistant barrister, or before the judge on appeal, by whom the matter in dispute is to be heard and determined; and in case any person so served with any such summons without sufficient cause shall not attend pursuant thereto, and produce any deeds, documents, papers, or writings required by such summons to be produced, it shall and may be lawful for the said assistant barrister, or judge on appeal, upon proof that proper service thereof had been duly made in sufficient time before the day for appearance named therein, of the sufficiency whereof the assistant barrister or judge on appeal is to determine, and that the reasonable and suitable expences of such person had been paid or- tendered to him at the time of such service, to award such fine against any such person who shall not attend, not exceeding ten pounds, as the said assistant barrister or judge on appeal shall deem fit and proper, he the said assistant barrister or judge on appeal causing to be filed of record in his court an affidavit of the time, place, and manner of the service of such summons, and of the payment or tender of such expences, to be made by the person proving the same; which said fine shall be paid or payable to the party or parties at whose instance and request the said summons shall have been issued: Provided always, that it shall and may be lawful for the assistant barrister or judge on appeal to tax and award against the unsuccessful party in any proceeding by civil bill such sum or sums of money as and for the expences of witnesses . . . not exceeding five pounds in the case of any one witness . . . ; or if the assistant barrister or judge on appeal shall think fit, it shall be lawful for him to award a certain limited sum to be paid for or in lieu of all the costs of all witnesses, but not in any case exceeding the rate aforesaid; and the costs so awarded, when payable by a defendant, shall be recoverable in like manner as and with and in addition to the sum ordered to be paid by him in the decree or order of the assistant barrister or judge of assize on appeal, arid, when payable by a plaintiff, shall be recoverable in like manner as herein provided as to the costs of a dismiss: Provided also, that upon the hearing of any ejectment or other civil bill it shall be lawful for the assistant barrister or judge on appeal, in his discretion, to receive in evidence proof of the handwriting of any party or of any subscribing witness to any instrument whatsoever, upon satisfactory proof being given before him that such party or witness resides out of the county where such civil bill shall be so heard.

Parties may appeal to the oath, of each, other, &c.

102. The parties, plaintiff and defendant, shall in all ejectment and other cases be mutually at liberty to appeal each to the oath of the other, provided that a notice in writing be served on the party so intended to be examined at least three days previous to the commencement of the sessions; but the assistant barrister or judge on appeal may dispense with the examination of any party in any case in which he may think it expedient so to do; and if he shall deem it to be a case in which he ought not to dispense with the oath of such party, it shall be lawful for such assistant barrister or judge on appeal, in case of the non-attendance of any plaintiff, either to dismiss the process without prejudice, or to nil the same, or in case of the non-attendance of any defendant, and the plaintiff thereby failing to prove his case, to impose on such defendant a fine not exceeding five pounds, to be recovered by civil bill: Provided always, that in case a defendant shall by such notice require the attendance at the hearing of the civil bill of any plaintiff therein who shall reside out of the jurisdiction wherein such civil bill is to be heard, he shall at the time of the service of such notice pay or tender to such plaintiff his reasonable expences (the reasonableness thereof to be determined by the assistant barrister or judge upon appeal); and in the event of the defendant’s omitting so to do, such plaintiff so residing out of the jurisdiction shall be excused from attendance in compliance with such notice, and the cause shall proceed and be determined as if no such notice had been served; but in the event of such expences having been paid or tendered, and of the non-attendance of the plaintiff, or of his attendance and of the plaintiff’s case being dismissed, the sum paid to the plaintiff shall be added to the ordinary costs of such dismiss: Provided also, that it shall be lawful for the assistant barrister to examine on oath any party who shall be in court, although no notice may have been served upon such party.

Recovery of fines for non-attendance by civil bill.

103. It shall and may be lawful for any party at whose instance any summons or notice shall have issued, requiring the attendance of any person as a witness, or of the opposite party to be examined, when the person so summoned as a witness, or the party noticed to attend, shall not have attended in pursuance of said summons or notice, as the case may be, and shall have been fined for such non-attendance, to proceed by civil bill against such person or party for recovery of the amount of the fine so awarded, together with such expences as may have been paid to such witness in the civil bill court of the division of the county or riding in which such person or party shall reside; and the certificate, signed by the clerk of the peace of the county in which such fine had been imposed, or by his deputy, upon proof of the handwriting of such clerk of the peace or deputy, shall be conclusive evidence that the person so fined for non-attendance had been duly called in court, and did not attend, and had been fined for non-attendance in the amount stated in such certificate: Provided always, that on the hearing of such civil bill it shall and may be lawful for the assistant barrister to receive evidence on the part of the defendant in such civil bill to satisfy him the said assistant barrister that the said defendant had not been served with the summons or notice, or had not been served in sufficient time to enable him to have attended, or that there was a reasonable and just excuse for the non-attendance of the said defendant; and the assistant barrister shall be at liberty to pronounce a decree, either for the full amount of such fine or for any smaller sum, or a dismiss, and with or without costs, as he may under the circumstances think fit.

Decrees proconfesso in certain cases.

104. In case any plaintiff in any civil bill shall be desirous to appeal to the oath of the defendant in such civil bill, it shall be lawful for such plaintiff to cause a notice in writing annexed to the civil bill process to be served upon such defendant at the time of the service of the civil bill, or upon his wife, child, clerk, or servant, or relative of the defendant or of the defendant’s wife, aged sixteen years and upwards, residing in his dwelling house, setting forth that the plaintiff in such civil bill requires the personal attendance of the said defendant upon the hearing of such civil bill, to be examined on oath touching the matters therein contained, and that in default of his appearance for that purpose an application would be made to the assistant barrister for a decree founded upon the affidavit of the plaintiff; and in such case, if the defendant shall not appear upon the said civil bill being called on for hearing, the assistant barrister shall postpone the same, so as to enable the plaintiff to make an affidavit setting forth the facts of the case, and such circumstances, if any, as in his judgment would justify the court in making a decree, and also the amount then justly due to him by the defendant in such civil bill, over and above all just and fair credits and allowances; and such affidavit shall be filed and kept with the records of the county or riding where the same shall have been sworn; and the party so swearing such affidavit shall be liable to be prosecuted for perjury in case any false statement shall be contained in the same; and it shall be lawful for the assistant barrister, upon due proof of the service of the said process and such notice annexed thereto as aforesaid, and upon being satisfied that the said defendant was resident at the time of the service other than personal at such dwelling house where such service was made, and was not at the time of the hearing of the said civil bill disabled by sickness or other sufficient cause from attending thereat, and upon consideration of the matter of such affidavit, and upon examination on oath of the plaintiff, in case he shall think fit to examine him, and if he shall be satisfied of the justice of the claim of the plaintiff, to make a decree for such sum as to him shall seem just, or to decline making any decree: Provided also, that in case any decree shall be made, it shall appear on every such decree so made as last aforesaid that the same was made upon the affidavit of the plaintiff filed in the said court, specifying the date thereof.

Proceedings not to be void for technical errors.

105. No action or proceeding under or by virtue of this Act shall be treated or considered as invalid on account of any verbal or technical error in the same; and it shall be lawful for every assistant barrister, or judge on appeal, to decide and determine what is a verbal or technical error or mistake in any action or proceeding; but all errors or mistakes which have not a tendency to mislead the opposite party shall in all cases be deemed merely verbal or technical.

Assistant barristers, &c. may amend variances, &c. and correct misjoinders.

106. It shall and may be lawful for the several assistant barristers, and judges on appeal, and they are hereby respectively empowered, in all cases, to amend all variances between the statement of the cause of action in any civil bill or other process or proceeding in their respective civil bill courts, and the evidence in support of such cause of action, and also to amend all variances, omissions, and misdescriptions in the descriptions, additions, and residence of the parties or any of them, or otherwise howsoever of or in any such process, or between the original and any copy or copies thereof, provided such last-mentioned variances, omissions, or misdescriptions shall not, in the opinion of the assistant barrister, be calculated to mislead the defendant or defendants therein; and in every case of any misjoinder of parties or causes of action it shall and may be lawful for every assistant barrister to strike out of the process the name or names of any one or more plaintiffs or defendants, or any count or counts in such process, by reason of whom or which such misjoinder shall arise, and thereupon to proceed therein as to justice shall appertain.

Office copies of judgments, &c. to be evidence.

Evidence of appointments of receivers.

107. In. every proceeding before the court of the assistant barrister or of the judge of assize upon appeal an office copy of any judgment, decree, or order made by or before any court of law or equity in Ireland, certified to be a true copy by the proper officer of such court of law or equity, as the case may be, shall, upon proof of such officer’s handwriting, be deemed and taken as primâ facie evidence of such judgment, decree, or order of such courts respectively: Provided always, that in every civil bill proceeding under this Act, where it may become necessary to proof the appointment of any person to be a receiver in any cause in any of the superior courts of equity in Dublin, an office copy of the order appointing such person such receiver, duly proved as aforesaid, shall be sufficient evidence of the appointment of such person as such receiver; and it shall not be necessary to produce in proof of such appointment the bill and answer or any other proceeding in the cause in which said person shall have been so appointed such receiver.

Office copies of wills to be evidence of the contents thereof in civil bill courts, &c.

108. In every proceeding before any assistant barrister in any civil bill court, or before a judge of assize on appeal, an office copy of any original will or other testamentary document lodged in any ecclesiastical court in Ireland, or in the registry thereof, and which shall appear by such copy to have been duly proved, and probate or letters of administration thereof granted, shall, upon due proof of the signature of the proper officer of such ecclesiastical court, certifying the same to be a true copy of such original will or other testamentary document, be admitted as primâ facie evidence of the contents of such original will or testamentary document of which it purports to be an office copy, without the production of the original will or testamentary document; and the proper officer of any such ecclesiastical court is hereby required to make a memorandum in writing upon such office copy of the time at which and the person or persons to whom such probate or letters of administration shall have been granted.

Assistant barrister may grant time and adjourn the hearing of a cause.

109. The assistant barrister may in any case make orders for granting time to the plaintiff or defendant to proceed in the prosecution or defence of any civil bill, and also may from time to time, and to the next subsequent sessions for the same division, bit not longer, adjourn the hearing or the further hearing of any civil bill, as to the said assistant barrister may seem fit.

[S. 110 rep. 55 & 56 Vict. c. 19. (S.L.R.)]

Decress.

Provision as to costs.

111. Wheresoever any assistant barrister shall, in any civil bill brought under and by virtue of this Act, grant a decree, the same shall be with such costs as are provided by this Act; but in case the plaintiff in any civil bill shall not proceed with the same, or shall fail to establish his case to the satisfaction of the assistant barrister, such assistant barrister shall and he is hereby authorized and empowered to dismiss such civil bill, with such costs as are by this Act provided (save as herein-after mentioned) and either without prejudice to the plaintiff’s proceeding by a new civil bill, or on the merits, as he shall think just.

Decrees may order debts, &c. to be paid by instalments, &c.

112. The assistant barrister, upon pronouncing any decree for any sum of money, may order the time or times when and by what instalments the debt or damages and costs for which such decree shall be obtained shall be paid: Provided, that if the assistant barrister shall have made such order for the payment of such sum of money and costs by instalments, the said decree shall not issue against the defendant until after default in payment of some instalment according to such order; and immediately upon such default being made, and affidavit thereof lodged with the clerk of the peace (and which affidavit any justice of the peace is hereby authorized and required to take), the said decree may issue for the whole, or for such balance as may then remain due after deducting such instalment or instalments as were previously paid.

Where more than one defendant, a dismiss may be given in favour of some and a decree against others.

113. It shall and may be lawful for the assistant barrister, upon the hearing of any civil bill where there shall be more than one defendant, to grant a decree, with costs, against one or more of such defendants, and to grant a dismiss as to the other or others of the defendants, either with or without costs, as he shall think fit.

Decrees of assistant barrister may be signed by his successor.

Process of arrest.

114. In case of the death, removal, or incapacity of any assistant barrister, it shall and may be lawful for his successor, or the barrister for the time being acting for him, to sign any order or decree pronounced by the barrister so dying or removed, or becoming incapable as aforesaid, and to act in all respects in reference to the orders made as the barrister so dying or removed, or being incapable as aforesaid, might have done; and the order and decree so signed shall be as valid and effectual as if the game had been signed by the assistant barrister who pronounced the same.

[Ss. 115–117, 120, 122–121. rep. 38 & 39 Vict. c. 66. (S.L.R.) Ss. 118, 121 rep. 55 & 56 Vict. c. 19. (S.L.R.) S. 119 rep. 20 & 21 Vict. c. 60. s. 2.1.]

Wearing apparel, bedding, and tools of debtors to the value of 5l. not to be seized in execution under civil bill.

125. [Recital.] The wearing apparel and bedding of any debtor in Ireland, and the tools and implements of his trade or business, the value of such apparel, bedding, tools, and implements not exceeding in the whole the value of five pounds, shall not be liable to seizure under any decree, dismiss, or order of any civil bill court against his goods and chattels: Provided always, that whether the value of such apparel, bedding, tools, and implements shall or shall not exceed the value of rive pounds, they shall, to an extent not exceeding five pounds in value, be protected from such seizure as aforesaid.

Affidavits as to civil bill proceedings may be taken by assistant barristers out of their counties, &c.

126. It shall and may be lawful for every assistant barrister in Ireland, although he shall not be at the time within the county of which he shall be such assistant barrister, to take any such affidavit or affidavits as he is now by law entitled to take, or as in any way relates to any action or proceeding in his court of civil bill jurisdiction, and to administer the necessary oath or oaths for that purpose; and every such affidavit shall be of the same force and effect, and the penalty for any false swearing therein shall be the same, to all intents and purposes, as if such affidavit was taken by or before such assistant barrister in the civil bill court within his county: Provided always, that every affidavit relating to or concerning any action or other proceeding in his court of civil bill jurisdiction shall, within six days after the day on which such affidavit shall be made, be delivered to the clerk of the peace of such county, or at the office of such clerk of the peace within such county to be filed amongst the records of such court, otherwise such affidavit shall be null and void.

[Ss. 127–130 rep. 45 & 46 Vict. c. 29. s. 9.]

Sheriffs neglecting to pay over deposit or sums levied under decrees, liable to pay double to party aggrieved.

131. . . . if the sheriff shall refuse or neglect to pay over any sum levied by virtue of any execution of such decree or dismiss to the person or persons entitled thereto, or to such person or persons as by him or them shall be lawfully authorized to receive the same, upon demand made for that purpose, such sheriff so offending shall forfeit to the party aggrieved double the sum so deposited with or received by such sheriff, together with legal interest for the same from the time of such demand, to be recovered by civil bill before the assistant barrister for the county for which such sheriff so acted, with like power of appeal is in the case of any ordinary civil bill.

[S. 132 rep. 55 & 56 Vict. c. 19. (S.L.R.)]

If no appeal, decrees and dismisses to be final.

In case of appeal the decree of judge of assize, &c. to be final.

133. Such decrees and dismisses as shall be made and pronounced by such recorder and assistant barristers respectively, shall, in case there shall be no appeal therefrom, be absolutely final to all intents and purposes, and shall not be subject to be removed, by any writ of error or otherwise, to any other of her Majesty’s courts, or capable of being reversed; and in case of an appeal from any such decree or dismiss to the next going judge of assize . . . the order or decree of such courts shall in like manner be absolutely final to all intents and purposes, and shall not be removed to any of her Majesty’s courts, by writs of error or otherwise, and shall not be capable of being reversed.

Where there are several defendants, and assistant barrister dismisses as to some and decrees against the others, the defendants decreed against may appeal.

134. In all cases where it shall happen that there are two or more defendants, and that the recorder or assistant barrister shall decide that one or more of said defendants is or are liable to the plaintiff’s demand, and that the other or others of said defendants is not or are not liable to same, and shall accordingly direct a decree to issue against one or more of the said defendants, and at the same time a dismiss against another or others of them, it shall and may be lawful in all such cases for the defendant or defendants, against whom such decree has been made to appeal in the same manner and under the same restrictions and provisions as if there was but one defendant in the cause.

One or more of several plaintiffs or defendants may appeal without the others.

135. In all cases where there shall be several plaintiffs or several defendants, it shall be lawful for any one or more of such plaintiffs to appeal against a dismiss, and for any one or more of such defendants to appeal against a decree, pronounced by the assistant barrister, although the other or others of said parties, plaintiffs or defendants, shall refuse or decline to join the said plaintiff or defendant so desirous of appealing: Provided always that such decree or dismiss so appealed against shall not, pending such appeal, be executed against the party or parties not appealing.

Appeals shall not be abated by the death of parties where there are several plaintiffs or defendants, but may be prosecuted by survivors.

136. Where in any civil bill there shall be several plaintiffs and several defendants, and all or more than one of such plaintiffs, or all or more than one of such defendants, as the case may be, shall appeal from the decree or dismiss of the recorder or assistant barrister, and after the lodging of such appeal any of such parties, plaintiffs or defendants, shall die (in case of a plaintiff or plaintiffs) leaving another plaintiff or other plaintiffs surviving, and (in case of a defendant or defendants) leaving another defendant or other defendants surviving, such appeal shall not abate by such death or deaths, but the same may be proceeded with at the suit of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, or vice versâ, as the case may be.

Notices on parties below to be good in cases of appeal.

137. In all cases where any party to any civil bill shall have given notice in writing to the opposite party to produce, upon the hearing of said civil bill before the recorder, or assistant barrister, any document, or any notice of set off, or any notice of any other kind or description whatsoever, it shall not be necessary for such party or parties so having given such notice to renew the same upon or for the hearing of any appeal that may be brought in such case, but any such notice so given for the original hearing of the civil bill shad be effectual in like manner upon the appeal.

Special case for the opinion of the judge on appeal on a question of law.

138. In all cases of appeal from any civil bill decree or dismiss it shall be lawful for the recorder, or assistant barrister, in case he shall be of opinion that a question of law only is involved in such proceeding, by consent of the parties respectively, to state a special case under his hand for the opinion of the judge on appeal upon such question of law; and thereupon like proceedings shall be had, and a like decision given upon such appeal and special case, and subject to like provisions, as in other cases of appeal, save that, without further proof of the facts of the case, the decision of the court of appeal shall be given upon such special case.

Renewals of decrees.

Decrees, &c. shall be in force for one year, and may be renewed every six months.

139. Every decree and dismiss made and signed by any assistant barrister shall be in full force and effect for one year from the date of the same; and the same, if not before executed, may be renewed from time to time once in every six months, or as near thereto as the time for holding the several sessions will permit: [¹] Provided always, that no civil bill decree for possession of any lands or tenements, or any affirmance of such decree . . . shall be renewed, save for the costs thereby decreed.

Decree not to be renewed till affidavit made by plaintiff, &c.

140. No decree shall be at any time renewed until the plaintiff in such decree, or one of the plaintiffs, if there be more than one, or, in case of the death of a sole plaintiff, then his or her personal representatives, or one of them, and, in case of more than one plaintiff, the surviving plaintiff, or one of the representatives of a deceased plaintiff, shall have made affidavit before the said assistant barrister for the county in which such decree was made or pronounced in open court held as aforesaid for such division; which affidavit . . . shall state the names of the parties in the original cause, the sum for which such decree was made, and the sum then remaining due or unpaid to the plaintiff or plaintiffs, or their personal representatives, on the foot of the said decree, after all just allowances: Provided that if the person swearing such affidavit was a party in the original cause as personal representative to some other person, or if such person so swearing shall seek to renew any decree or dismiss as executor or administrator of one of the parties in the original cause, it shall be sufficient for such person to swear that such sum still remains due, after all just allowances, as he or she verily believes: . . .

Dismiss not to be renewed till affidavit made.

141. No dismiss shall be at any time renewed until the defendant who shall have obtained the same, or one of the defendants, if there shall be more than one defendant, or, in case of the death of a sole defendant, then his or her personal representatives, or one of them, and, in case of more than one defendant, the surviving defendant, or one of the representatives of a deceased defendant, shall have made affidavit, in like manner and form, mutatis mutandis, as is herein-before provided in the case of renewing a decree; which affidavit so sworn and signed by and with the name or mark of the person so swearing it, as well where the party shall seek to renew a decree as a dismiss, shall be written or printed on the same piece of paper with the renewal of the said decree or dismiss, filled and prepared for the said assistant barrister to sign; and when such affidavit shall have been sworn the said assistant barrister shall sign his name thereto, testifying that the same was sworn before him in open court; and the said assistant barrister shall and may then renew such decree or dismiss (by signing such renewal) for the whole original sum and costs, if the whole shall be due, or for such sum as shall be sworn or affirmed to remain due, as the case shall happen, together with the costs of such renewal; and thereupon the said affidavit shall be separated from the said renewal, and shad be delivered to the clerk of the peace for the county or his deputy, and shall be kept among the records of the county.

Decrees or dismisses may be renewed by plaintiff or defendant, or their executors, &c.

No renewal after two years, nor at any time to or against other than the original parties, except upon notice.

142. It shall be lawful for any plaintiff or defendant, or surviving plaintiff or defendant, or the executor or administrator or assignee of any plaintiff or defendant who shall have become bankrupt or insolvent, or the husband of any plaintiff or defendant, by whom any decree or dismiss was obtained, to renew any decree or dismiss, or any affirmance or reversal of any decree or dismiss of the assistant barrister affirmed or reversed on appeal, against any defendant or plaintiff or surviving defendant or plaintiff, or the personal representatives of such parties respectively; provided that all such renewals shall be subject to the same and the like conditions and regulations as are herein prescribed: Provided always, that it shall not be lawful for any assistant barrister to grant a renewal of any civil bill decree or dismiss, affirmance or reversal, when two years shall have elapsed after such decree or dismiss, affirmance or reversal, shall have been pronounced, nor at any time to grant such renewal to or against any person not being an original party to such civil bill, unless upon proof made in open court that the party seeking such renewal caused notice in writing . . . to be served upon the person against whom it is sought to renew such decree or dismiss, affirmance or reversal, setting forth the particulars of such decree, and the amount for which the application to renew such decree is proposed to be made; such notice to be served in like manner as civil bill processes are hereby required to be served, and at the like time previous to the first day of holding the civil bill court to which such application is intended to be made, and to be entered with the clerk of the peace, and heard and determined in like manner as any ordinary civil bill.

[S. 143 rep. 38 & 39 Vict. c. 66. (S. L. R.)]

Decree or dismiss not to be renewed after six years.

144. No decree or dismiss to be made or pronounced, by any assistant barrister, shall be renewed at any time after six years from the time of the making or pronouncing the same; but the debt and costs therein shall, after seven years from the making of the original decree or dismiss, be absolutely extinguished, and shall not be capable of being enforced by any proceeding whatsoever; and such decree or dismiss, or renewal thereof, shall not be revived or kept in force by any parol evidence or promise to pay the same or any part thereof, or by any evidence of a part payment thereof: Provided nevertheless, that if the defendant or defendants shall execute any new security in writing for such debt or costs, such new security shall be of full force and effect in law.

[Ss. 145–147 rep. 27 & 28 Vict. c. 99. s. 60.]

Execution of decrees.

Punishment of persons taking cattle or goods under any decree or dismiss between sunset and sunrise.

148. If any cattle or goods shall be taken and carried away under any decree or dismiss, or under colour of any decree or dismiss obtained upon any civil bill, between the hours of sunset and sunrise, the person or persons so taking and carrying away the same shall be deemed guilty of a misdemeanor, and being convicted thereof shall suffer such punishment by fine or imprisonment, or both, as to the court who shall try the case shall seem meet; and in any indictment for this offence it shall be sufficient to allege generally that the party or parties fraudulently, contrary to the intent of this Act, carried away such cattle or goods between the hours of sunset and sunrise, without describing more particularly the circumstances of such offence; and the property in the goods and cattle so taken shall not be altered by any sale thereof.

[S. 149 rep. 38 & 39 Vict c. 66. (S.L.R.)]

Where goods taken under a decree are claimed by a third person, he may, on making an affidavit, and lodging the amount of the sum mentioned in the decree, or the value of the goods, with the sheriff, have the goods delivered to him.

Claimant to bring a civil bill at the next session against plaintiff in decree; and assistant barrister to make a decree or dismiss thereon.

Sheriff shall pay the money lodged with him to the party entitled.

Damages may be givenfor original taking.

Party refusing to deliver up the goods on sheriff’s order, or retaking them, guilty of a misdemeanor.

150. [Recital] When any goods taken under any decree, order, or process of any civil bill court in Ireland shall be claimed by any person who is not a party to such decree, order, or process, it shall and may be lawful for the said person so claiming such goods so taken as aforesaid, or his agent, to make an affidavit before any justice of the peace for the county wherein such goods shall have been seized under such decree, order, or process (and which affidavit such justice is hereby empowered to take and receive), to the purport that the said goods are the bonâ fide property of the person so claiming the same; and it shall and may be lawful for the sheriff of the county where such goods shall be so seized, upon the lodgment with the said sheriff of such affidavit, and of the amount of the sum mentioned in such decree, order, or process, where the value of the goods so seized shall exceed or be equal to the amount of the sum mentioned in such decree, order, or process, or, in the event of the value of the goods so claimed being less than the sum so mentioned, then such sum as shall be equal to the value of such goods (such value to be ascertained by any appraiser appointed by the said sheriff for taking replevins), to issue an order for the delivering up of such goods to the said person so claiming the same, or to cause the same to be delivered up accordingly; and the said sheriff shall, within eight days from the day of lodgment of such affidavit as aforesaid, transmit same to the office of the clerk of the peace, to be there filed, and shall hold the laid money so deposited with him to abide the order or decree of the assistant barrister in respect of the same, as herein-after mentioned; and the person so claiming the said goods, and depositing the said money with the sheriff as aforesaid, shall cause a civil bill process to be served on the plaintiff or party in such decree, order, or process, at whose suit such goods shall have been taken, stating that he claims the same as his property; and the said civil bill shall be returnable to the quarter sessions for the division of the county in which such seizure was made next after such deposit with the said sheriff, provided that the same can be served on the defendant in due time for such next quarter session, and if not then to the session for the division next following, and not after; and the said civil bill as to the said claim of property shall be served, heard, and determined as any ordinary civil bill, and the said assistant barrister shall make a decree or dismiss thereon, as he shall think fit, with costs; and if the said claim of property shall not be substantiated to the satisfaction of the assistant barrister, then the said sheriff shall, and he is hereby required, upon the production to him of a dismiss in such case or in case of the non-production of a decree for the plaintiff therein, within ten days from the termination of the sessions at which such civil bill ought to have been brought, without further order, pay over the monies so deposited to the defendant in such last-mentioned civil bill, and credit shall be given by such defendant for the same out of the amount due on the original decree, order, or process; and in like manner, upon the production to the sheriff of a decree in favour of the claimant of the said property, the said sheriff shall pay back to the said claimant the said sum of money so deposited with him as aforesaid: Provided always, that it shall and may be lawful for the assistant barrister before whom such claim of property shall be tried, if he shall think fit, and damages shall be claimed in the process, to give damages, not exceeding in any case five pounds, for the original taking of the said goods, as well as to make an order for the payment of the said deposit to the claimant: Provided also, that if any person or persons shall decline or refuse to deliver up the goods so taken upon any decree, order, or process under this Act, after production to him or them of the order of the sheriff for that purpose, or shall retake such goods under the same decree or order, under which the same were so originally taken, such person or persons so offending shall be deemed guilty of a misdemeanor, and liable to be punished accordingly; and in any indictment for this offence it shall be sufficient to allege generally that the party knowingly and wilfully declined and refused to deliver up such goods, or re-took the same (as the case may be), after production to him of the said order of the said sheriff; and provided also, that nothing in this provision contained shall debar the party claiming the goods as aforesaid from any remedy to which he would have been entitled if this Act had not been passed, instead of proceeding under this provision.

Miscellaneous provisions.

Assistant barristers may fine clerks of the peace and sheriff’s guilty of any breach of duty, and may fine or commit to prison persons for disturbing the court, &c.

151. It shall and may be lawful for every assistant barrister, from time to time as there shall be occasion, of his sole authority, and at his discretion, to fine the clerk of the peace, or his deputy, of all counties and ridings respectively, and all sheriffs of counties and counties of cities and counties of towns respectively, where courts for deciding causes by civil bill shall be held, who shall respectively be guilty of any breach of duty in the execution of this Act, in any sum not exceeding five pounds, and, of his sole authority, and at his discretion, to fine in any sum not exceeding forty shillings, or, at his discretion, to commit to prison for any time not exceeding a fortnight, any person whomsoever who shall disturb the court so to be held by him for the hearing and determining causes by civil bill, or for any other contempt of the said court.

Fees specified in sched. (D.) to be deemed the lawful fees.

Penalty for taking larger fees.

152. [¹] In all actions and proceedings by civil bill the fees specified in the schedule (D.) to this Act annexed shall be established and be deemed and taken as the lawful fees and emoluments for the discharge of the several duties therein specified by the respective officers therein mentioned, and no other fees or payments shall be recoverable for the discharge of such duties; and every clerk of the peace, or his deputy, attorney, sheriff, bailiff, or process officer, who shall receive any greater fee, gratuity, or emolument, or other consideration, for any of the services specified in the said schedule, shall forfeit and pay the sum of ten pounds sterling for every such offence, to be recovered by civil bill by any person who may sue for the same.

Fees in sched. (D.) to be chargeable against unsuccessful party.

153. [¹] The several fees mentioned and set forth in the schedule (D.) to this Act annexed in that behalf shall be the fees chargeable against any party, plaintift or defendant, as between party and party, upon any civil bill brought under the provisions of this Act; and no other fee or charge shall be made in any bill of costs between party and party, or in any decree or dismiss, other than those set forth in said schedule.

[S. 154 rep. 55 & 56 Vict. c. 19. (S.L.R.)]

Table of fees to be exposed in some conspicuous parts of the offices of clerks of the peace and courts of quarter sessions.

155. [¹] Every clerk of the peace shall and he is hereby required to cause to be constantly exposed, as well in his office as also in some particular place accessible to the public in every court of general or quarter sessions within his county, a fair and legible table, painted or printed in letters and figures not less than one half inch in length, of the fees payable upon all proceedings upon all civil bills, and likewise the penalty to which any person may become liable for receiving any greater fee than is set forth in the said schedule (D.) to this Act annexed for any of the services therein specified; and on proof made on summary application to the coure of any neglect or omission of such exposure, the clerk of the peace so neglecting shall forfeit any sum not exceeding five pounds, to be paid to the treasurer of the county within which such penalty shall be incurred, and accounted for and applied by such treasurer to the aid of the expenditure of such county; and it shall be lawful for the grand jury of every county, and they are hereby required, at any assizes to be held in and for such county, to present the reasonable and actual expence of preparing and exposing such tables to be raised by presentment upon such county, and to be paid to such clerk of the peace.

[S. 156 rep. 38 & 39 Vict. c. 66. (S.L.R.)]

Persons swearing falsely, &c. to be guilty of perjury, &c.

157. If any person taking an oath in any action, examination, or other proceeding under the provisions of this Act, shall wilfully and corruptly swear falsely, he shall be deemed guilty of perjury, and shall be liable to be prosecuted and punished accordingly; and if in any such action, examination, or other proceeding the assistant barrister shall deem any witness or party to have so far wilfully and corruptly sworn falsely, as that in his opinion such witness or party ought to be prosecuted at the expence of the county within which, the witness or party shall have so sworn, and shall certify such opinion in writing, then and in every such case, if any prosecution be instituted, the court in which such prosecution shall take place shall make an order for payment of the expences of such prosecution by the treasurer of the county.

Powers of assistant barristers, &c. under this Act conferred upon recorders of Dublin and of Cork.

158. All jurisdictions, powers, and authorities by this Act conferred upon the assistant barristers of counties in relation to proceedings by civil bill are hereby conferred upon the recorder of Dublin, and the recorder of Cork: Provided always, that, so far as regards the recorder of Dublin, and the recorder of Cork, nothing in this Act contained shall be deemed or taken to abridge or in any manner affect the jurisdiction conferred on the, said respective recorders by the Acts of the third and fourth years of her Majesty, chapter one hundred and eight, and of the thirteenth and fourteenth years of her Majesty, chapter seventy-three, where such jurisdiction shall exceed the jurisdiction conferred by this Act; and that nothing herein contained shall be taken to alter the mode of appointment of a deputy by such recorders, or of officers of the court of the said recorders, or the existing power of such respective recorders to appoint the proper officers of such courts for the service or execution of the process of the same under this Act; and if any doubt shall arise in the application of this Act as to what officers of such courts shall correspond with those named in this Act under proceedings by civil bill, it shall be lawful for such courts respectively to determine the same.

Proceedings by civil bill under 3 & 4 Vict. c. 108., &c. to be bad or taken before recorders of boroughs, shall be, as near as may be, in the forms, &c. provided by this Act.

159. [Recital of 4 Vict. c. 108. s. 183.] All proceedings by way of civil bill under said recited Act, or under any other Act not hereby repealed, to be had or taken before any recorder of a borough or town in Ireland, other than the recorders of Dublin and Cork, shall be, as nearly as the circumstances of the case will admit, in the forms, and subject to the like provisions as to stamps and fees, and according to such course, and with such right of appeal to a judge of assize or at nisi prius of the county or city in which for such purpose such borough or any part thereof shall be situate, and subject to such other rules and regulations, as by this Act is provided in cases of civil bills determinable before any assistant barrister or chairman, and with the same amount and limits of jurisdiction: Provided always, that nothing herein contained shall be construed to affect the manner or times of holding the courts of such recorders for the hearing of such civil bill proceedings, or to abridge any existing power of such respective recorders to appoint the proper officers of such courts for the service or execution of the process of the same; and if any doubt shall arise in the application of this Act, as to what officers of such courts shall correspond to those named in this Act for the service or execution of process, it shall be lawful for such courts to determine the same.

[S. 160 rep. 38 & 39 Vict. c. 66. (S.L.R.)]

Appointment of revising barrister for city of Dublin.

161. [Repealed portion refers to the duties of the chairman of the county of Dublin with respect to the registry of voters for the city of Dublin under 2 & 3 Will. 4. c. 88, and to the discharge of such duties until death or resignation.] It shall and may be lawful for the Lord Lieutenant to nominate and appoint a practising barrister-at-law of ten years standing at the least, during good behaviour, who shall have actually practised ten years in her Majesty’s superior courts in Dublin, and who shall not at the time of his appointment to such office have retired from such practice, to discharge the said duties with regard to the registry of voters in and for the City of Dublin, . . .

Interpretation of terms.

162. In the construction of this Act the several proceedings and duties hereby directed to be had and done in the office of and by the clerk of the peace shall be had and done (as regards the City of Dublin) in the office of and by the registrar of civil bills for the City of Dublin; and the provisions of this Act in relation thereto shall extend to such registrar of civil bills; and the expression “assistant barrister” or “assistant barristers” shall extend to and include the recorder of the City of Dublin and the borough of Cork, and the several recorders herein mentioned, in civil bill proceedings, save and except so far as relates to the appointment, salary, retiring pension, and continuance in office of the said recorders, or so far as it is by this Act in other respects otherwise specially provided; and wherever the clerk of the peace is named in this Act, the provision shall extend to the acting or deputy clerk of the peace or other officer discharging the duties of a clerk of the peace; and whenever the sheriff is named, the provision shall extend to the sub-sheriff; and the words “party” and “person”, whenever used in this Act, shall extend to and include any corporation or public company; and the word “county” or “counties” shall extend to include “riding” or “ridings” of counties appointed for civil bill purposes and for all or any matters relating to general or quarter sessions; unless in any of such cases there be something in the context or provision repugnant to or inconsistent with such construction.

Schedules to be part of Act.

163. The schedules to this Act annexed shall be deemed and understood as part of this Act.

[S. 164 rep. 55 & 56 Vict. c. 19. (S.L.R.)]

165. This Act shall extend to Ireland only, save where the Extent, contrary is hereby expressed.

SCHEDULES to which the foregoing Act refers.

[Sched. (A.) rep. 38 & 39 Vict. c. 66. (S.L.R.)]

[Scheds, (C.) & (D.) rep. 55 & 56 Vict. c. 19. (S.L.R.)]

[¹ Short title, “The Civil Bill Courts (Ireland) Act, 1851.” See 55 & 56 Viet. c. 10.]

[¹As to fees now payable to process servers, under 40 & 41 Vict. c. 56. s. 85, see Schedule Part XI., annexed to Rules of 1st March 1890 (Statutory Rule and Orders, 1890, p. 222).]

[¹ Substituted for forty by 40 & 41 Vict. c. 56. s. 50.]

[¹ Substituted for forty by 40 & 41 Vict. c. 56. s. 50.]

[¹ Substituted for twenty by 40 & 41 Vict. c. 56. s. 53.]

[¹ Substituted for twenty by 40 & 41 Vict. c. 56. s. 53.]

[² Sections 81, 84–87, 92, 94, 96 are rep., so far as they relate to proceedings between landlord and tenant, and to persons in occupation who shall have signed acknowledgments pursuant to this Act, 23 & 24 Vict. c. 154. s. 104.]

[¹See note to s. 81.]

[¹See note to s. 81.]

[¹See note to s. 81.]

[¹See note to s. 81.]

[¹See note to s. 81.]

[¹See note to s. 81.]

[¹See note to s. 81.]

[¹ The proviso in section 139, that no civil bill decree for possession of any lands or tenements, or any affirmance of such decree shall be renewed, save for the costs thereby decreed, is rep. 27 & 28 Vict. c. 99. s. 60., as to so much as is inconsistent with the power of renewal specially given by that Act.]

[¹ Sched. (D.) is rep. 55 & 56 Vict. c. 19. (S.L.R.). See now Schedule of Fees annexed to Rules of 1 March 1890 (Stat. Rules and Orders, 1890, p. 88).]

[¹ Sched. (D.) is rep. 55 & 56 Vict. c. 19. (S.L.R.). See now Schedule of Fees annexed to Rules of 1 March 1890 (Stat. Rules and Orders, 1890, p. 88).]

[¹See note to s. 152.]